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A  TREATISE    ^^^ 


ON   THE 


AS   IT   IS   ENFORCED   BY 


COURTS  OF  EQUITABLE  JURISDICTION, 


IN    THE 


UNITED  STATES  OF  AMERICA. 


By  JOHN  NORTON  POMEROY,  LL.  D., 

LATE  PROFESSOR  OF  MUNICIPAL  LAW    IN  THE    HASTINGS'  LAW  DEPARTMENT  OF  THE  UNIVERSITY 
OF   CALIFORNIA;    AITTHOR   OP    ARCHBOLD'S    CRIMINAL     PRACTICE    AND   PLEADING. 


SECOND     EDITION. 

By  JOHN  NORTON  POMEROY,  A.  M.,  LL.  B., 

Of  the  San  Francisco  Bar. 


1897. 
BANKS    &    BROTHERS, 

New  York.  Albany,  N.  Y. 


^4 


r 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

seventy-nine, 
BY  BANKS  &  BROTHERS, 
In  the  oflice  of  the  Librarian  of  Congress,  at  Washington.  . 


Entered  acconlinj;  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

ninety-seven. 

By  BANKS  &  BROTHERS. 

In  tlio  oflice  of  tlie  Librarian  of  Congress,  at  Washington. 


-o 
•o 


Or 


HON.  S.  CLINTON  HASTINGS, 

OK    THK    SAX    l-'UAXCISCO    BAH, 

BT    WHOSE    AVISE    AXD    LARGE    LIBERALITY    THE    LAW    IJEI-AUTMENT 

OF     THE     UNIVERSITY     OF     CALIFORNIA     HAS     BEEN     ESTAU 

LISHED  UPON  A   ISUOAI)   AND   SECURE  FOUNDATION, 

IS    RESI'KCTFDLLY   DEDK'ATKD 
BY    THK    AUTHOR. 


671523 


PREFACE. 


This  volume  contains  a  large  amount  of  matter  derived  from  both 
English  and  American  decisions.     The  object  of  the  work  is  correctly- 
described  by  its  title.     Its  discussions  are  confined  to  those  equitable^ 
doctrines  which  relate  directly  to  the  specific   performance  of  con- 
tracts ;  the  specific  enforcement  of  trusts^  either  express  or  implied, 
does  not  come  within  the  purpose  and  scope  of  the  book.     The  author 
has   endeavored  to  prepare  a  treatise  suited  to   the  needs  of  the 
American    lawyer,    and    representing   the    equitable    doctrines  con- 
cerning  specific   performance  as  they   have    been   established,   and 
are  administered  by  the  American  courts.     Partly  from  the  simplicity 
of  our  real  estate  law,   and   partly  from   the    habits,  customs,  and 
modes  of  dealing  of  our  landed  proprietors,  there  has  grown  up  in 
this  country  a  system  of  doctrines  and  rules  relating  to  the  specific 
enforcement  of  contracts  quite  different  in  many  important  respects, 
from  that  which  exists  in  England,  and  which  is  recognized  by  the 
English  courts  and  text-writers.      A  treatise  which  should  present 
and  illustrate  this  American  system,  and  which  should  describe  all 
those  features  which  distinguish  it  from  the  English,  seemed  to  be 
needed;  and  such  a  book  the  author  has  endeavored  to  write.     "While 
no  claim  is  made  that  all  the  cases  in  the  reports  have  been  cited,  it 
is  believed  that  cases  of  authority  are  cited  bearing  upon,  and  sustain- 
ing, every  principle,  doctrine,  and  rule  which  belongs  to  the  general 
subject  of  specific  performance,  and  which  has  received  a  judicial  sanc- 
tion.   Every  particular  instance,  in  which  a  contract  has  been  specific- 
ally enforced  may  not  have  been  mentioned,  but  the  principles  are 
stated  and  explained  to  which  every  instance  may  be  referred,  and 
by  which  it  must  be  determined.     Much  labor  and   care  have  been 
given  to  the  preparation  of  the  notes,  which  contain  a  very  full  com- 
mentary on  and  illustration  of  the  text,  and  furnish  numerous  state- 
ments of  decided  cases  and  quotations  from  judicial  opinions,  which 
the  author  trusts  will  be  found  coiivenieTit  to  those  members  of  the 
profession  who  do  not  have  ready  access  to  extensive  libraries. 

JOHN  NORTON  POMEROY. 


Prefatory  Note  to  the  Second  Edition. 


The  editor's  labors  in  the  arrangement  of  the  vast  mass  of  case-law 
relating  to  his  subject  which  has  accumulated  since  the  publication 
of  the  first  edition  of  this  work  have  been  greatly  assisted  by  the 
help  of  scholarly  and  elaborate  notes  to  an  unpublished  edition  of 
Fry  on  Specific  Performance,  prepared,  about  nine  years  ago,  by  his 
friend  Prof.  Nathan  Abbott  of  Leland  Stanford,  Junior,  University. 
For  this  generous  aid  in  the  execution  of  a  difficult  task,  the  editor 
■desires  to  express  his  most  earnest  thanks,  and  is  confident  that 
the  profession  will  appreciate  the  degi-ee  in  which  the  value  of  the 
editorial  work  has  been  thereby  enhanced. 

It  is  hoped  that  the  author's  system  in  the  treatment  of  his  subject 
has  been  rendered  more  readily  apprehensible  in  its  details  by  the 
liberal  insertion  of  paragraph  headings  and  catch  words  in  bold- 
faced type. 

A  suggestion  from  the  editor's  experience  as  instructor  in  Equity 
with  a  class  of  students  at  Stanford  University  may  not  be  out  of 
place,  and  may  be  of  interest  to  those  concerned  with  methods  of 
legal  pedagogy.  Instruction  in  that  least  comprehended,  fragment- 
ary, but  from  the  ethical  standpoint  surely  the  most  scientific  branch 
of  our  Anglo-American  law,  have  frequently  felt  themselves  embar- 
rassed by  the  vastness  and  complexity  of  their  subject,  and  the  diffi- 
culty of  presenting  it  to  the  student  in  more  than  the  most  meager 
outlines,  within  the  time  usually  allotted  to  it  in  the  law-school  cur- 
riculum. Their  natural  ambition  to  cover  the  whole  field  with  some 
degree  of  thoroughness  seems  necessarily  a  futile  one  ;  the  wise  stu- 
dent, or  the  wise  teacher,  will  lighten  his  labors  and  render  them 
more  fruitful  by  a  judicious  selection  of  topics.  It  is  submitted, 
whether  on  the  whole,  a  more  convenient  introduction  to  their  subject 
can  be  found  than  in  a  careful  study  of  the  remedy  of  Specific  Per- 
formance ?  The  student  obtains  by  this  means  a  working  knowltMlge 
of  all  the  most  important  general  doctrines  and  maxims  of  E(iuity, 
doctrines  touching  the  jurisdiction,  concerning  Fraud  niid  Mistake, 
concerning  the  dual  nature  of  legal  and  equitable  estates,  as  well  as 
most  perfect  illustrations  of  those  doctrines  which  define  atui  limit 


VI  PRRFATORY  NOTE   TO    THE   SECOND   EDITION. 

the  discretionary  character  of  the  construction.  These  cardinal  prin- 
ciples once  mastered,  and  exeniplilied  by  their  application  to  the 
subject-matter  that  at  present  most  frequently  comes  before  a  court 
of  equity's  attention  —  the  contract  of  purchase  and  sale  of  land  — 
the  student  is  well  prepared  to  appreciate  their  application  to  other 
siibject-uiatter.  Little  of  the  learning  on  Specific  Performance  is 
technical ;  still  less  is  obsolete,  for  the  American  lawyer.  As  to  its 
gen(3ral  educational  value,  for  the  thoughtful  student,  the  editor  may 
be  pardoned  if  he  refers  with  some  confidence  to  such  discussions  as 
those  contained  in  paragraphs  26,  27,  36  to  46,  and  313  to  315  of  the 
text,  and  ventures  to  hope  that  a  work  which  is  in  most  respects  the 
best  rounded  and  completest  of  his  father's  writings  may,  with  proper 
elucidation  by  selected  cases,  become  familiar  to  the  student,  as  well 
as  an  occasional  help  to  the  busy  judge  and  practitioner.  It  is  be- 
lieved that  a  sense  of  some  of  the  matters  hinted  at  above  led  to  the 
author's  undertaking  its  composition  as  a  propaedeutic  to  his  more 
famous,  but  not  more  complete,  laagnuni  opics,  the  Treatise  on  Equity 
Jurisprudence. 

March  1,  1897.  J.  N.  P.,  Jr. 


TABLE    OF    CONTENTS. 


INTRODUCTORY  CHAPTER. 

Spctione. 
General  natin-e  of  specific  perfonnum-o l-fi 


CHAPTER  I. 

GENERAL  NATURE,  EXTENT  AND  LIMITATIONS  OF  THE  RIGHT  TO  A  SPECIFIC 
PERFORMANCE  OF  CONTRACTS. 

SECTION  I. 
Is  an  ancillary  and  supplementary  equitable  remedy. 

Equitable  theory  and  g-rounds  of  the  remedy 0-8 

First  ground:  iTutdequacy  of  damages 9-li7 

Contracts  concerning  land 9 

Contracts  concerning  personal  projierty 10 

Contracts  concerning  chattels 11-1(5 

Contracts  concerning  special  chattels 12 

Contracts  concerning  delivery  of  deeds,  etc 13 

Contracts  concerning  chattels  where  there  is  a  trii:  t 14 

Contracts  concerning  miscellaneous  subjects 1"),  IG 

Contracts  concerning  things  in  action 17-21 

Contracts  concerning  stocks 17-19 

Contracts  for  assignment  of  debts,  etc 20 

Awards 21 

Contracts  for  personal  acts 22 

Contracts  for  building,  construction,  etc 23 

Contracts  enforced  by  injunction 24.     25 

Natui-e  and  extent  of  "  inadequacy  of  damages  " 2('>.     27 

Second  ground :  Impracticability  of  a  legal  remedy 2S-;}4 

Contracts  which  plaintiff  fails  or  is  unable  to  jici'form  strictly 29 

Contracts  not  enforceable  at  law  by  reason  of  a  statute 30 

Contracts  not  enforceable  at  the  common-law -^l 

Proceedings  under  statute  for  taking  land  by  railway  comi)aiiies 32 

Contracts  so  incomplete  that  an  action  at  law  cannot  be  maintained 33 

Contracts  in  which  there  is  no  bsisis  for  ascertaining  damages 34 


Vlll  TABLE   OF  CONTENTS. 

SECTION   II. 

The  discretionary  character  of  the  remedy.  Sections. 

Doctrine  as  ordinarily  stated,  with  abstract  of  decisions  in  note 3{) 

Analysis  of  this  doctrine  ;  the  discretion  is  an  application  of  the  principle  *'  he 
who  seeks  equity  must  do  equity ; "  when  the  equitable  conditions  are 
fulfilled,  the  equitable  remedial  right  is  absolute 36-46 

SECTION  III. 

Will  not  he  granted  when  the  legal  remedy  is  sufficient. 

General  doctrine;  money  contracts 47,  48 

Contracts  for  sale  of  ships,  etc 49 

Contracts  with  liquidated  damag-es  or  penalties 50 


CHAPTER  II. 

THE  NATURE,  ELEMENTS,  FEATURES  AND  INCIDENTS  WHICH  MUST  BELONG 
TO  CONTRACTS  IN  ORDER  THAT  THEY  MAY  BE  SPECIFICALLY  ENFORCED. 

These  features  and  incidents  of  contracts  classified  and  described 51,     52 

First  Group. 

Those  features  which  pertain  to  the  external  foo^m  of  the  agreement,  and 
the  manner  of  expressing  its  various  terms,  and  which,  in  analogy  to  the 
common-law  requisites,  relate  to  the  very  existence  of  a  binding  contract. 

SECTION  I. 

The  parties  must  have  the  capacity  to  contract. 

Capacity  in  general 53,  54 

Capacity  of  married  women  under  recent  statutes 55 

Capacity  of  corporations ;  doctrine  oiultra  vires 56 

SECTION  II. 

The  contract  must  he  upon  a  valuable  consideratio7i. 
Consideration  always  necessary  ;  effect  of  a  seal  inequity 57 

SECTION  III. 

A  contract  must  be  actually  concluded  between  the  parties  with  the  requisite 
formalities;  there  must  he  an  '^ aggregatio  mentium"  upon  the  same 
matters. 

General  rule  ;  how  contracts  are  concluded 58 

1.  Offer  and  acceptance 59-67 

2.  Promise  to  do  something  on  demand 68 

3.  Representations  and  acts  done  on  their  faith 69 


TABLE   OF  CONTENTS.  ix 

SECTION  IV. 

The  written  memorandum  required  by  the  statute  of  frauds. 

Sections. 

Abstract  of  American  statutes  (in  note) 70 

Object  of  the  statute 71 

I.  How  memorandum  must  be  executed 73-80 

II.  External  form  of  memorandum 81-84 

III.  Contents  of  memorandum 85-95 

Part-performance  of  verbal  contracts. 

General  doctrine 96 

Not  adopted  in  certain  States 97 

First.  Kinds  and  classes  of  contracts  to  which  the  doctrine  of  i)art-j)crforniance 

.  may  be  applied 99-101 

Second.  Equitable  basis  and  principles  of  the  doctrine 102-109 

I.  Fraud,  the  foundation 103-106 

II.  Nature  of  the  acts  of  part-performance  ;  must  be  in  pursuan<'e  of 

the  contract  and  to  carry  it  into  execution 107-109 

Third.  The  particular  acts  which  are  or  are  not  part-performance 110-135 

1.  Acts  prior  to  the  contract 110 

2.  Acts  ancillary  to  it 110 

3.  Man-iage Ill 

4.  Payment 112-114 

5.  Possession  115-125 

6.  Improvements 126-132 

Improvements  by  a  donee  in  possession 130-132 

7.  Marriage  with  other  acts 133 

8.  Miscellaneous  cases ;  exchange  of  lands;  labor  and  services;  acts 

by  a  third  jierson 134,  135 

Fourth.  Nature  of  the  evidence  by  which  the  contract  must  be  proved.,..  136-139 
Verbal  contract  when  admitted  by  defendant's  answer,  effect  of,  140,  141 
When  compliance  with  the  statute  is  prevented  by  actual  fraud,  142,  143 
Trusts,  ex  maleficio,  when  enforced 144 

SECTION  V. 

The  contract  must  be  complete. 

General  doctrine 14r>,  146 

I.  Parties 147 

II.  Price 148-151 

III.  Subject-matter 152,  1.53 

IV.  Other  material  terms ;  implied  terms  l.'>4-157 

Time  to  which  the  completeness  must  be  referred 158 

SECTION  VI. 

The  contract  must  be  certain. 

General   doctrine;  inHtiuKtes   of  uncertainty;   i)!ir(>l    evidence,    when   jwbnis- 

sible init  101 


x  table  of  contents. 

Second  Group. 

Those  incidents  and  qualities  which  do  not  primarily  involve  the  validity  of 
the  contract,  but  which  directly  affect  the  right  to  the  equitable  reviedy^ 
upon  the  principle  that  he  who  seeks  equity  must  do  equity. 

SECTION  VII. 

The  contract  must  be  mutual. 

Sections, 
Mutuality   of  obligation   and    of    remedy ;    general    rule    as    to    both  and 

exami)les   162-165 

Time  when  the  mutuahty  must  exist 166 

Limitations  on  the  doctrine 167-174 

Unilateral  contracts,  options,  etc 168,  169 

Memorandum  under  statute  of  frauds 170 

Cases  where  objection  to  a  want  of  mutuality  is  waived.,     171-174 

SECTION  VIII. 

The  contract  must  be  fair,  equal  and  just  in  its  terms. 

General  doctrine 175,  17& 

First.  Fairness  in  the  contract  itself. 177-182 

I.  Time  when  the  unfairness,  etc.,  must  exist 177,  178 

II.  Incidents  which  aid  in  determining  the  fairness 179 

III.  Contracts  which  are  unfair 180-182 

Second.  Extrinsic  circmnatances  rendering  the  contract  mifair 183,  184 

SECTION  IX. 

The  remedy  of  specific  performance  must  not  he  harsh  or  oppressive. 

General  doctrine 185 

Time  to  which  the  hardship  must  be  refrrcd 186,  187 

"What  are  hardships;  examples 188-191 

SECTION  X. 

Inadequacy  of  the  consideration. 

Inadequacy  described 192 

Inadequacy  alone,  when  ground  for  a  rescission 193 

Inadequacy  alone,  when  it  will  prevent  a  specific  pei-formance 194 

Inadequacy  alone,  time  of. 195 

Inadequacy  coupled  with  other  facts 196 

Inadequacy  in  contract  between  parent  and  child,   etc 197 

SECTION  XI. 

The  title  must  be  free  from  reasonable  doubt. 

General  doctrine 198 

Former  rule  ;  modem  ride 199,  200 


TABLt:   CF  CONTESTS.  xi 

.Sections. 

I.  Ciises  of  title  tiw  doubtl'iil liOl   'JOS 

Marketable  title 201 

"Where  there  is  a  diflerence  of  opinion  between  courts  or  juilg-es,  202 
Whei-e  the  doubt  must  be  settled  by  future  litijj-alion 203 

II.  Nature  and  extent  of  the  doubt 204-208 

Must  be  reasonable 204 

"Where  title  is  based  ui)on  jn-t'sninptidiis 205 

Particular  instances  of  doubt 20G-208 

Third  Group. 

Incidents  and  features  of  the  contract  connected  with  or  growing  out  of  the 
conduct — generally  preliminary — of  the  parties  which  involve  the  validity 
of  the  contract  and  viay  render  it  voidable,  and  lohich,  therefore,  as  a 
matter  of  strict  right,  affect  the  equitable  remedy. 

SECTION  XII. 

The  contract  must  be  free  from  misrepresentation. 
General  doctrine  ;  effects  of  niisi-ein-esentation  in  law  and  in  0(|uity  ;  elements 

of  a  misrepresentation 209-211 

I.  Its  form ; 212 

II.  Purpose  for  which  it  is  nuule 213 

III.  Its  falsity 214 

IN.  Knowledg'e  or  belief  of  party  making' it 21.5-217 

Different  rule  in  law   and  in  equity  ;  no  scienter  net-essary  to 

prevent  a  specific  performance 216,  217 

"V.  Its  effect  on  the  party  to  whom  made 218-226 

He  must  be  justified  in  relying  on  it 219-221 

Must  disaffirm  at  once  on  discovei-ing-  the  untruth 222 

His  actual  knowledge  of  the  real  facts,  effect  of. 223,  224 

Effect   of  a   positive   niisrepi-esentation   not  obviated   by  any 
general  expressions  of  caution  ;  sale  "with  all  its  defects"  ....  225 

When  the  contract  has  been  assigned 226 

VI.  Its  materiality 227 

Partia*  misrepresentations  ;  waiver 228 

SECTION  XIII. 

The  contract  must  he  free  from  mistakes. 

Definition  of  mistake 229 

General  doctrine  as  to  effect  of  mistake;  how  proved  ;  kinds  of. 230,  231 

First.  "What  species  of  mistake   are  available  as  the  occasion  of  ecpiitable 

i-elief,  either  defensive  or  affinnative 232-242 

I.  Must  be  of  fact  and  hot  merely  of  law 232 

Mistake  of  law,  effect  of. 233-238 

II.  Unexpected  result  of  compromises,  etc 23ft 


Xll  TABLE   OF  CONTENTS. 

Sections. 

III.  Mistake  must  be  material 240 

IV.  Intentional  omission  or  act  is  not  a  mistake 241 

V.  Subsequent  parol  change  of  a  written  contract 242 

JSecond.  Mistake,  when  set  up  by  a  defendant  to  defeat  a  specific  performance; 
and  herein  incidentally  of  rescission  or  refoi-mation  of  the  con- 
tract   243-258 

I.  Where  the  mistake  is  made  by  the  defendant  alone 243-245 

1.  Where  defendant's  mistake  is  induced  by  acts  of  the  plaintiff.  244 

2.  Where  the  mistake  is  solely  due  to  the  defendant 245 

II.  Where  defendant  seeks  to  modify  the  terms  of  a  written  con- 
tract on  account  of  a  mistake  by  one  or  both  of  the  parties,  246-258 

1.  Where  the  widtten  agreement  fails  to  express  the  real  con- 

tract   247-249 

Reforming  the  written  instrument  in  such  case 248,  249 

2.  Mutual  mistake  as  to  subject-matter 250 

3.  Mutual  misunderstanding  of  the  contract 251 

4.  Mistake  by  the  defendant  alone | 252 

Election  by  plaintiff  to  have  a  specific  performance  according 

to  defendant's  version  ;  defendant's  right  to  such  a  specific 

performance 252,  253 

Recapitulation;  parol  evidence,  when  admissible 254-258 

Third.  Where  mistake  is  alleged  by  the  plaintiff  as  a  ground  for  reforming 
his  agreement,  and  enforcing  its  specific  performance  when  thus 

con-ected 259-266 

English  rule 2.59,  260 

American  doctrine 261,  262 

Modification  of  this  doctrine 263-266 


SECTION  XIV. 

The  contract  must  be  free  from  fraud. 

General  doctrine 267 

Concealments 268-271 

Puffers  at  auction 272-276 

Combinations  among  bidders  at  auction 277 

Fraud  by  agents 278 

Waiver  of  fraud 279 


SECTION  XV. 

The  contract  must  be  free  from  illegality. 

•Genei'al  doctrine 280 

Kinds  and  classes  of  illegal  contracts 281-285 

Defense  of  illegality,  grounds  of;  proof  of  illegality 286 

Valid  rights  and  interests  may  arise  from  illegal  contracts 287 


table  of  contents.  xul 

Fourth  Group. 

Those  incidents  which  relate  to  or  are  connected  with  the  actual  enforcement 
of  a  decree,  and  which  require  that  a  specific  performance  shoidd  be 
practicable. 

SECTION  Xvi. 

The  contract  must  be  such  that   its   specific  performance  would  not  be 

nugatory. 

Sections. 

General  doctrine  ;  revocable  contracts 289 

Partnei-ship  agreement 290 

Affi-eement  to  submit  to  arbiti-ation  ;  agreement  for  a  lease  already  forfeited 

by  lessee's  breach  of  a  condition,  etc 291 

SECTION  XVII. 

Incapacity  of  defendant  to  perform. 

Nature  of  this  incapacity 292 

First.  Where  defendant's  incapacity  is  total 293-297 

Second.  Where  it  is  partial ;  alteraative  contracts 298-302 

SECTION  XVIII. 

Incapacity  of  the  court  to  enforce  a  performance. 

Nature  of  this  incapacity 303 

I.  Where  the  court  is  unable  to  render  a  decree 304-306 

11.  Where  the  court  is  unable  to  enforce  its  decree 307-312 


CHAPTER  III. 

ACTS  OR  OMISSIONS  OF  THE  PARTIES,  AND  OTHER  PACTS,  DONE  OR  OCCUR- 
RING SUBSEQUENTLY  TO  THE  CONCLUSION  OP  THE  CONTRACT,  WHICH 
APPECT  THE  RIGHT  TO  A  SPECIPIC  PERPORMANCE. 

Equitable  estates  and  interests  of  the  parties  to  a  contract 313-315 


SECTION  I. 

Scents  without  the  agency  of  the  parties;  failure  of  the  subject-m,atter  or  of 

the  consideration. 

When  the  estates  and  intei-ests  of  the  pai-ties  vest ;  when  the  contract  is  con- 
cluded   31G-319 

Destruction  of  the  subject-matter,   etc.,  before  or  after  the  vesting  of  the 

estates 320-322 


xiv  TABLE   OF  CONTENTS. 

SECTION  II. 

Performance  by  the  plaintiff  a  condition  precedent  to  his  enforcing  perform- 
ance upon  the  defendant. 

Sections. 

Oeneral  doctrine 323 

J^rst.  Plaintiff's  duty  to  comply  with  the  provisions  on  his  part 324-364 

I.  The  general  doctrine  ajjplicable  to  either  i^arty  when  plaintiff  324-338 

Substantial  performance  generally  requisite 324-326 

Impossibility  of  performance 327 

Exception  in  case  of  marriage  contracts 328,  329 

Performance  of  future  terms 330-332 

Performance  of  representations 333 

Performance  of  conditions  in  conditional  contracts 334-338 

II.  Plaintiff's  inability,  when  vendor,  to  give  a  good  title  or  to  convey 

the  subject-matter  as  specified  in  the  contract 339-353 

General  rule  that  plaintiff  must  make  a  good  title,  etc 339-342 

Different  estate  from  that  contracted  for 343-346 

Defect  of  vendor's  title 347-351 

Deficiency  in  the  quantity  of  land 352,  353 

III.  Affirmative  acts  of  plaintiff  in  violation  of  the  contract 354-359 

IV.  Tender,  when  necessary 360-363 

Kind  of  deed  and  title  which  plaintiff  must  give 364 

Second.  Some  rules  for  interpreting  usual  provisions  in  contracts 365-369 


SECTION  III. 

Time  as  affecting  the  right  to  a  performance  ;  lohen,  and  when  not,  of  the 
essence  of  the  contract. 

Grounds  of  the  equitable  doctrine  as  to  time 370-372 

I.  Time  not  ordinarily  essential 373-381 

Explanation  of  this  docti-ine  ;  instances 373-377 

Effect  of  clause  in  a  contract  declaring  it  forfeited  or  void   if  not  per- 
formed by  a  specified  time 378-381 

II.  Time  when  essential 382-398 

1.  Where  originally  essential  from  the  natui-e  of  the  subject-matter, 

or  from  the  object  of  the  contract 383-888 

2.  Where  made  essential  by  express  stipulation 389-394 

3.  Where  made  essential  by  a  subsequent  notice  given  by  one  of  the 

parties •• 395-398 

in.  Time,  when  material 399-426 

Three  modes  of  viewing  time.  \\z.,  as  inunaterial,   as  essential  and  as 
material;  each  defined 400-402 

1.  Where  the  delay  is  caused  solely  by  the  acts  or  omissions  of  either 

party 403-420 

2.  Where  the  delay  is  caused  by  a  defect  in  the  vendor's  title,  or  by 

a  difficulty  in  perfecting  the  title 421-426 


TABLE   OF  CONTENTS  X^ 

3.  Rights  of  the  pai-ties  to  interest,  or  to  the  rents  and  protits  when 

there  has  been  a  dehiy  in  the  performance 427-433 

SECTION   IV. 
Partial  specific  performance  and  compensation. 

Yarious  chu^ses  of  cases  in  wliich  the  doctrine  is  applied 434-437 

I.  Where  the  vendee  is  plaintiff,  demanding  a  partial  specific  performance 

or  pei'formance  with  compensation 43S-448 

II.  Where  the  vendor  is  plaintiff,  demanding  a  partial  specific  performance 

or  performance  with  comjiensation 44il— 4i36 

III.  Enforcement  of  contract  against  husband  or  husband  and  wife,  where 

the  wife  has  an  interest  in  the  land 457-463 

1.  Where  the  husband's  interest  is  partial  and  the  wife  cwnis  the 

fee  457-4r)9 

2.  Where   the  Avife   of  vendor  has  an  inchoate  dower  i-ight  in  the 

land 4G0-4G3 

IV.  Enforcement  by  the  vendee  when  the  vendor  has,  subsequently  to  the; 

contract,  sold  or  conveyed  the  land  to  a  third  person 464-468 

SECTION  V. 

Damages,  when  given  in  place  of,  or  in  addition  to,  a  specific  performance. 

Interpretation  of  Lord  Cairns' act  in  England 4(39-473 

Jm-isdiction  of  equity  to  award  damages 474 

Equity  rules  as  to  damages  in  suits  for  a  specific  perforniunc*' 47r)-479 

Modifications  made  by  the  reforaied  procedure 480,  481 


CHAPTER  IV. 

PROCEDURE  IN  THE  SUIT  FOR  A  .SPECIFIC  PERFORMANCE. 

SECTION  I. 

The  parties. 

General  rule  of  equity 482,  483 

First.  Parties  plaintiff. 484-490 

I.  When  the  suit  is  on  behalf  of  the  vendee 484-488 

II.  When  the  suit  is  on  behalf  of  the  vendor 489,  490 

Second.  Parties  defendant 491-496 

I.  When  the  suit  is  against  the  vendor 491,  494 

II.  When  the  suit  is  against  the  vendee 495,  496 

SECTION  II. 

Special  statuUrry  provisions. 
Special  provisions  against  heii-s  or  adminiatratoi'S  of  a  decea.sed  vendor...  4'.i7,  498 


TABLE  OF  OASES  CITED. 


^^  PAGE. 

Abbott  V.  Baldwin,  61  N.  H.  583..  145 
154,  181,  201 

V.  Draper,  4  Denio,  52 139 

V.  James,  111  N.  Y.  673...  283 
V.  Sworder,  4  De  G.  &  Sm. 

448... 273,  301 

V.  Ti-eat,  78  Me.  121 321 

Abbot's  Ex'r  v.  Reeves,  13  Wright, 

494 19 

Abeel   v.    Radcliff,  13   Johns.    300. 

120,  130,  214 
Abendroth  v.  Greenwich,  29  Conn. 

356 437 

Aberaman  Iron  Works  v.  Wickens, 
L.  R.  4  Ch.  101....  293,  295,  300, 

481,  545 
Abrams  v.  Rhoner,  44  Hun,  507. . .   281 

Acker  v.  Phoenix,  4  Paige,  305 244 

Ackenman  v.  Ackerman,  24  N.   J. 

Eq.  315 192,  504 

V.  Fisher,  57  Pa.  St.  457. 

166,  182 

Ackla  V.  Ackla,  6  Pa.  St.  228 

Acton  V.  Acton,  Prec.  inCh.  237. ..     42 
Adair  v.  Winchester,  7  Gill  &  Johns. 

114...., 66 

Adams  v.  Adams,  17  Oreg.  247  —   158 
V.  Blackwall  R'yCo.,2  McN. 

&G.118 43 

v.Broke,lY.  &C.C.C.  627.  221 

V.  FuUam,  43  Vt.  592 167 

V.  Green,  34  Barb.  176....  389 
V.  Lambert,  2  Jur.  1078  ... .  440 
V.  Lindsell,  1  B.  &  A.  681..  95 
V.  Messinger,  147  Mass.  185. 

20,     25 


PAGE. 

Adams  v.  McMillan,  7  Port.  (Ala. ) 

73 120,  123 

V.  Robertson,  37  111.  45....  317 
V.  Rockwell,  16  Wend.  285.  179 
V.  Townsend,  1  Met.  483.. .  139 
V.  Weare,  1  Bro.  C.  C.  567.  265 
Aday  V.  Echols,  IS  Ala.  353... 226,  541 
Adderly  v.  Dixon,  1  S   &  S.  607. 

6,  7,  8,  9,.  11,  13,  21,  25,  66,  232 
Addington  v.  Allen,  11  Wend.  375.  299 
V.  McDonnell,  63  N.  C. 

389.    479 

Agar  V.  Macklew,  2  S.  &  S.  418   . . .   213 
Agard   v.    Valencia,    39    Cal.    292. 

223,  546,  552 
Agate  V.  Lowenbein,  4  Daly,  62.. .  33 
Ainslie  v.  Medlycott,  9  Ves.  21.. 97,  296 
Aitkin  v.    Young,    12  Pa.    St.    15. 

173,  174,  177 

Akhurst  v.  Jackson,  1  Sw.  85 397 

Aikin  v.  Blanchard,  32  Barb.  527..     76 
Albea  v.  Griffin,   2    Dev.    &    Bat. 

Eq.g 138,  183 

Albert  v.  Wai-e,  2  Md.  Ch.  169 199 

V.  Winn,  5  Md.  66 136 

Aldborough,  Earl  of,  v.  Trye,  7  CI. 

&Fin.436 269 

Aldrich  V.  Bailey,  132  N.  Y.,  85. ..   288 
Aldridge   v.  Eshleman,  10  Wright, 

420 223 

Alexander,  Appeal  of  (Pa  ),  11  Atl. 

Rep.  S3 548 

V.  Ghiselin,  5Gill.  138....     20 
V.  Mills,  L.  R    t;   Ch.  124. 

278,  582,  284 
V.  Newton,   2  Gratt.   266. 

317.  332 


TABLE   OF  CASES   CITED. 


PAGE. 

Alexander  v.  Wellington,  Dk.  of,  2 

R-  &  My.  35 42 

Allan  V.  Bower,  3   Bn..  C.  C.   149. 

153,  194 
Allegheny   City  v.  McClurkan,   14 

Pa.  St.  81 76 

Allen  V.  Atkinson,    21    Midi.    351. 

218,  219,  278,  281,  400,  474 
V.    Bennett,    3     Taunt.    169. 

109,  119 
V.  Booker,  2  Stew.  (Ala.)  21.  139 
V.  Burke,  3  Md.  Ch.  534....  340 
V.  Cerro  Gordo  Co.,  40  Iowa, 

349 232,  234,  237,  359 

V.  Chambers,  4  Ired.  Eq.  125.  138 
V.  Thomas,  3 Mete.  (Ky.)  198.  548 
V.  Webb,  64  111.  342. . . .  192,  223 
V.  Young,  88  Ala.  838. .  193,  541 
Allen's  Estate.  1  Watts  &  Serg.  383. 
136,  139,  145,  150,  155,  159,  1G4, 

171,  172 
AUerton  v.  Johnson,  3  Sandf.  Ch. 

73 449,  489 

Alley  V.  Deschamps,   13  Ves.   225. 

400,  447,  474,  478 
Allison  V.  Burns,  107  Pa.  St.  50,  53. 

185,  194 
V.    Shilling,    27    Tex.    450. 

528,  .546,  549,  553 

Allyn  V.  AUyn,  154  Mass.  570 394 

Alsopp  V.  Patten,  7  Vern.  472 159 

Alt  V.Alt,  4Giff.  84 98 

Alvanley  v.  Kinnaird,  2  McN.  &  G. 

7 328,  335 

Ambrouse    v.    Keller,    22     Gratt. 

769 12,  398,  479 

Anderson  v.  Bacon,  1  A.  K.  Marsh. 

48 314 

V.  Brinser,   129   Pa.   St. 

376,  401 167 

V.  Chick,   1   Bailey   Ch. 
lis..   117,  145,  154, 

156,  159,  173 
V.  Frye,  18  111.  94..  474,  475 
V.  Harold,  10  Ohio,  399..  109 
V.Horn,  75  Tex.  675....  167 
V.  Kennedy,  51  Mich.  467.  507 
V.  Kittle,  37  Minn.  124.. .  372 
V.  Pemberton,  89  Mo.  65.  179 
V.  Schockley,  82  Mo.  250, 

255....' 179 


PAGE. 

Anderson  v.  Scott,  94  Mo.  637,  644. 

179,  185,  186,  268 
V.  Simpson,  21  Iowa,  399. 

164,  174 
Andrew  v.  Babcock  (Conn.),  26  Atl. 
Rep.  715  (May  4,  1893) ....   7,  88, 

153,  168 
Andrews  v.  Andrews,  28  Ala.  432. 

45,  370 
v.    Bell,    6    P.    F.  Smith, 

343 397,  479 

v.  Brown,  3  Cush.  130...   540 
V.    Essex,   etc.,  Ins.  Co., 

3  Mason,  6 346 

V.  Jones,  10  Ala.  400 136 

V.  Scotton,  2  Bland.  629..   393 

Angel  V.   Simpson  (Ala.),  3  South 

Rep.  758 133 

Angus  V.  Clifford  (1891),  2  Ch.  449.  296 
Annan  v.  Merritt,  13  Conn.  478.  40,  136 
Ann   Berta  Lodge  v.  Leverton,  42 

Tex.  18 182,  183 

Anonymous,  2  Freem.  Ch.  106 427 

5  Yin.  Abr.  522..   195,  343 

2  Yes.   Sen.  629 369 

ISalk.   170 177 

Anshutz's  Appeal,  34  Pa.  St.   375. 

546,  556 
Anson  v.  Towgood,  1  J.  &  W.  637.   393 
Anthony  v.  Leftwich,  3  Rand.  255. 
137,  139,  145,  154,  155,  156,  174, 

183,  193,  261,  304,  312,  480 
Apperson  v.  Gogin,  3  111.  App.  48.  21 
Archbold  v.  Howth,  Lord,  1 1.  R.  C. 

L.608 174 

Archer  v.  Baynes,  5  Wels.  H.  &  G. 

625 124 

v.  Preston,  1  Eq.  Cas.  Abr, 

133 10 

Argenbright  v.  Campbell,  3  Hen. 

&  M.  144 136,  199 

Armiger  v.  Clarke,  Bunb.  Ill 231 

Armitage  v.  Wadsworth,  1   Mass. 

192 18 

Armstrong  v.  Armstrong,  21  Beav. 

78 68 

v.  Courtney,  15  Ir.  Ch. 

138... 384 

V.  Kattenhorn,  11  Ohio, 

265 140,  174 

V.  Pierson,  5  Iowa,  317.  467 


TAIILE   OF  CASES   CITED. 


XIX 


Armstrong-   \.    Wyandotte    Bridge 

Co.,M(;Cahon.  IGG.  410 
Ai-nold  V.  Anioid,  2  Dev.  Eq.  4G7.   330 

V.  Cord,  16  Ind.  177 10,  203 

200 

V.  Nichols.  C4  N.  V.  117.  ..  549 

V.  Stephenson,  79  Ind.  120.  173 

Arnot's  Case,  36  Ch.  D.  702 ...... .      86 

Arthur  v.  Arthur,  10  Barb.  9 32 

Artz  V.  Grove,  21  Md.  450 19 

Arundel  (Lady)  v.  Phipj)s,  10  Yes. 

139 '. 14,     15 

Ash  V.  Dag-g-y,  0  Ind.  259..  53,  108, 

182,  201 
Ashe  V.  Johnson,  2  Jones  Eq.  149. 

13,  21,  24,     06 
Ashley  v.  City  of  Little  Rock  (Ark. ), 

19S.  W.  Rep.  10.')8 

Ashmore  v.  Evans,  3  Stockt.  151. . .  488 
Ashton  V.  Corrigan,  L.   R.    13  Eq, 

70 10,     07 

Ashurst  V.  Peck  (Ahi.),  14  So.  Rep. 

541 389,  436 

Asijinwall  v.  Aspinwall,   49   N,    J. 

Eq.302 27 

Aston  V.  Robinson,  49  Miss.  348 . . . 

53,  55,     57 
v.  Wood,  3  Sm.  &   Gif,  436. 

423,  523 
Athol,   Earl   of,   v.  Derby,  Earl,  1 

Ch.  Cas.  221 10 

Atkinson  v.  Jackson,  8  Ind.  30 ... .    185 
v.  Ritchie,  10  East,  530..  360 
v.  Whitney,  67  Miss.  655.  109 
Atlanta,  etc.,  R.  R.  v.  Speer,  32 

Geo.  550 385 

Att'y-Gen.  v.    Christ     Church,     13 

Sim.  214 495 

V.    Day,     1    Ves.    221. 
105,  173,  198,  200, 

419,  505,  519 
V.  Deerfield   River  Br., 

105  Mass.  1 540 

V.  Mid.  Kent.  R'y  Co., 

L.  R.  3Ch.  100  ...     29 
V.    Purraort,    5    Paige, 

620  466 

V.   Sitwell,    1    Y.    &   C. 

Ex.  583 198,  343 

Atwood  V.  Cobb,  16  Pick.  230,.  130, 

133,  135,  211 


PAGE. 

Atwood  V.  Small,  0  CI,  &  Fin.  447. 

299,  359,  514 
Aubin  v.  Holt.  2  K.  &  J.  60  ,  ..365,  380 
An  Gres  Boom  Co.  v.  Wliitney,  26 

Mich.  42 12 

Austin  V.  Davis  (Ind.),  20  N.  E.  R. 

890 185 

V.    Gillespie,   1   Jones    Eq. 

261 24,     66 

V.    Tawney,    L.    R.    2    Ch. 

143 4r)9 

V.    Wacks,    30    Minn.    335. 

465,  470,  479 

Auter  V.  Miller,  18  Iowa,  405 55 

Averett  v.  Lipscorabe,  76  Va.  404. 

369 

Averill  v.  Hedge,  12  Conn.  424 95 

Avery    v.    Griffin,    L.   R.     0    Eq, 

606 373,  526 

V.  Ryan,  74  Wis.  591 24 

Ayers  v.  Baumgarten,  15  111.  444..   274 

Ayles  V.  Cox,  16  Beav.  23 418,  519 

Aylesford's    (Earl)     Case,   2   Stra. 

783 164,  168 

Aylett  v.  Ashton,  1  My.  &  C.  105. . .  516 

B. 

B V.  Walford,  4  Russ.  372 , ,  545,  547 

Babbett  v.  Day,  41  N.  J.  Eq.  392..  219 
Backhouse  v.  Crosby,  2  Eij.  Cas. 

Abr.  32 109,  23S 

V.  Mohun,  3  Sw.  434». 

109,  238,  325 
Backus's  Appeal,  58  Pa.  St.  186. ..     55 
Bacon  v.  Bronson,  7  Johns   Ch.  194.  298 
'  V.  Ky.  Cent.  R.  Co.  (Ky  ),  25 

S.  W.  Rep.  747 238 

Bacot  V.  Wetmore,  2  C.  E.  Green, 

250 545 

Baden  v.  Pembroke,  2  Vem.  212..  551 
Bagley  v.  Peddie,  16  N.  Y.  469...  69 
Bagshaw  v.  Eastern  Union  R'y  Co., 

7  Har.  114 75 

Bagwell  V.  Bagwell,  72  Ga.  92 ... .  253 
Bail*'  V.  St.  Jo.seph  Ins.  Co.,  73  Mo. 

371 21 

Bailey  v.  Bailey,  8  Humph.  230...  345 
V.  Collett,  18  Beav.  179.  496,  497 
V,  James,  11  Gratt.  408  ... .  529 
V.  Leroy,  2  Edw.  Ch.  .514..  117 
V.  Strong,  8  Conn.  278 66 


TABLE    OF  CASES   CITED. 


PAGE. 

Bailey  v.  Sweeting,  30  L.  J.  C.  P. 

150 124 

Bainbridge  v.  Kinnaird,  32   Beav. 

346 516 

Baker  v.  Carson,  1  Dev.  &  Bat.  Eq. 

381 183 

V.  Glass,  6  Mumf.  212. 

213,  218,  226 
V.  Hathaway,  5  Allen,  103..  526 
V.  Hawkins,  14  R.  I.  359. . .  21 
V.  Hollobough,  15  Ark.  322.  199 
V.  Paine,  1  Ves.  Sen.  456...  332 

V.  Scott,  2T.  &  C.  606 189 

V.  Thompson,  16  Ohio,  504. .   396 

V.  White,  2  Vern.  215 362 

V.  Wiswell,  17  Neb.  52,  58. 

159,  193 

Baker's  Exrs.  v.  De  Freese  (Tex,), 

215  W.  963 185 

Baldock  v.  Atwood  (Oreg.),  26Pac. 

R.1058 186 

Baldwin    v.    Commonwealth,      11 

Bash.417 24 

V.  Salter,  8  Paige,  473..  392 
V.  Soc.  forD.  ofU.  K.,  9 

Sim.  393 383 

V.  Squier,  31  Kan.  283..   162 
V.  "Van  Vorst,   2   Stockt. 

Ch.  577 462 

Ball  V.  Coggs,  1  Bro.  P.  C.  140 ... .     20 
V.  Storie,  1  S.  &  S.  210..   328,  333 
Ballard  v.  Ballard,  25  W.  Va.  470. 

325,  466 
V.  Walker,   3   Johns.    Cas. 

60 109,  448 

Ballet  V.  Halfpenny,  2  Vern.  373..  204 
BalUngall  v.  Bradley,  16  lU.  373..  124 
Ballou  V.  March,  133  Pa.  St.  64,  68. 

223,  231 
V.  Sherwood  (Nebr.),  49  N. 

W.  Rep.  790 286 

Balmanno  v.  Lumley,  1  V.  &  B.  225.  516 
Baltimore,  etc.,  R.  R.  v.  Nesbit,  10 

How.  (U.S.)  395 44 

Bk.  of  Alexandria  v.  Lynn,  1  Peters, 

376 261,  479 

Augusta  V.  Earl,   13  Peters, 

587 76 

Columbia  v.  Hagner,  1  Pet. 
455 390 


PAGE. 

Bk.  of  U.  S,  V.  Daniels,  12  Peters, 
32 317 

Bannerman  v.  Clarke,  26  L.  J.  (N. 
S.)Ch.77 498 

Barbadoes  Toll  Co.  v.  Vreeland,  3 

Green's  Ch.  157 448 

Barbour  v.  Craig,  6  Litt.  213 116 

Bard  v.  Elston,  31  Kan.  274 142 

Barickman  v.  Kuykendall,  6  Blackf. 

21 122,  135,  139 

Barker  v.  Bradley,  42  N.  Y.  310..  548 
V.  Cox,  L.  R.  4  Ch.  D.  464.  525 
V.  Critzer,  35  Kan.  459  ... .  238 
V.  Hodgson,  3  M.  &  S.  267.  360 
V.  May,  3  J.  J.  Marsh.  436.  244 
Barkley  v.  Barkley,  14  Rich.  Eq.  12.  20 
Barkworth  v.  Young,  4   Drew,   1. 

106,  122,  136,  377 
Barlow  v.  Meyers,  6  T.  &  C.  183..   549 

Barnard  v.  Cave,  26  Beav.  253 331 

V.  Lee,  97  Mass.  92..  109, 

235,  236, 240,  460, 462,  466 

V.  Macy,  11  Ind.  536 554 

Barnes  v.  Barnes,    65   N.    C.    261. 

10,  11,     33 
V.  Boston,  etc.,  R.  R.  Co., 

130  Mass.  388...  149,  173 
V.  Brown,  71  N.  C.  507. ...  138 
V.  Geary,  35  Ch.  D.  154...  32 
V.  Teague,  1  Jones  Eq.  277. 

138,  201 
V.  Wood,   L.    R.    Eq.    424. 

505,  508,   525 
Barnet  v.  Dougherty,  32  Pa.  St.  372,  207 
V.  Wheeler,  7  M.  &  W.  364.  221 
Barnett  v.    Mendenhall,   42   Iowa, 

296 374,  526 

V.  Spratt,  4  Ired.  Eq.  171.  258 
V.  Washington   Glass   Co. 
(Ind.  App.),  40  N.  E. 

,      Rep.  1102 168,  169 

Barney  v.    Patterson,    6    Har.    & 

Johns.  182 123 

Barnwell  v.  Harris,  1  Taunt.  430..  286 

Barraud  v.  Archer,  2  Sim.  433 520 

Barret  v.  Blagrave,  5  Ves.  555  ...     32 
Barrett   v.    Forney,    82    Va.    269. 

57,  145,  167 
V.  Geisinger,  148  111.  98. . .  182 
V.  Ring,  2  Sm.  &  Gif.  43. 

253,  504 


TABLE    OF  CASES   CITED. 


l-AliE. 

Barringlou  v.  Horn,    ")    Vin.    K.\n\ 

547 374 

Barry  v.  Coombe.  1   Pet.  640 106 

122,  124,  22S 
Bai-stow  V.  Gray,  3  Greeul.  409...  109 
Bartlett  V.  Bartlett  (Mit'h.),   61   N. 

W.    500 ..      139 

V.  Judd,  21  N.  Y.  200....   347 

V.  Watson,  5  Sneed,  288..  559 

V.  Wheeler,  44  Barb.  162.  141 

Barton  v.  De  Wolf,  108  111.  195 .... .    24 

V.  Downes,   Lord,    1    Flan. 

&  K.  505. .  418,  419,  519,  520 
Bashore  v.  Whisler,  3  Watts,  494..  393 
Baskcomb  v.  Beckwith.  L.  R.  8  Eq. 

100 61,  326,  352,  425,  520 

Bass  V.  Galliland,  5  Ala.  761 504 

Basset  v.  Basset,  1  Mod.  265 377 

Bassler  v.  Niesly,  2  Serg-.  &  R.  352.  164 
Bateman  v.  Porter,  9  Allen,  234 .. .  21 
Bates  V.  Delavan,  5  Paig-e,  299.  219,  278 

Batie  v.  Allison,  77  Iowa,  413 90 

Battell  V.  Matot,  58  Vt.  271...  199,  200 
Battersbee   v.    Farring-ton,    1    Sw. 

106 '^. 136 

Battersby  v.  Smyth,  3  Madd.  110..  68 
Batturs  v.  Sellers,  6  Har.  &  Johns. 

249 197 

Batty  V.  Lloyd,  1  Vern.  141 275 

Baum's  Appeal,  113  Pa.  St.  58 ... .  18 
Baum  V.  Dubois,  10  Wright,  537..  448 
Bauman  v.  James,  L.  R.  3  Ch.  508. 

120,  194,  216,  217,  224 
Baumann  v.  Pinckney,   118   N.   Y. 

604 11,  433 

Bawdes  v.  Amhurst,  Prec.  Ch.  404.  204 
Bawdry  v.  Bawdry,  7  Barr,  157. . .  169 
Baxendale  v.  Seale,  19  Beav.  601. 

248,  249,  328,  335 
Baxter  V.  Connolly,  1  J.  &  W.  576.  380 
Baylis  v.  Stimson,  110  N.  Y.  621..  286 
Baynham  v.  Guy'.s  Hospital,  3  Ves. 

295 462 

Beal  V.  Clark,  71  Ga.  818 153 

186,  268 

Bean  v.  Valle,  2  Mo.  103 135,  273 

Beard   v.    Linthicum,    1    Md.    Ch. 

345....   152,  192,  229,  345 
V.  Nutthall,  1  Vern   427...     80 
Beardmer  v.  London  &  N.  W.   Ry. 
Co.,  1  McN.  &G.  112 409 


Beanlon  v.  Wood,  1   A.  K.  Marsh. 

450 435 

Beardsley  v.  Knight.    10   Yt.    185. 

317,  314 
Schythe  Co.  v.  Foster,  36 

,    N.*  Y.561 547 

Beatson  v.  Nicholson,  6  Jur.    620. 

90,  236,  413 

Beaumont  v.  Dukes,  Jac.  422 408 

Beck  V.  Allison,  56  N.  Y.  367 385 

V.  Bridg-man,   70  Ark.    382. 

145,  504 
Becker  v.  T.>n  Eyck,  6  Paigre,  68..  362 
Beckett  v.  White,  26  Ohio  St.  405..  114 
Beckham  v.  Drake,  9  M.  &  W.  79.  129 
Beckley  v.  Newland,    2   P.    Wins. 

182 42 

Beckwith  v.  Cheever,  1   Fost.    41. 

93,     95 

Bedford,  Dk.  of,  v.  Tinistees,  etc., 

2  My.  &  Ke.  552 262 

Beebe    v.    Dowd,    22    Barb.    265. 

189,  449,  489 
V.  Young.  14  Mich.  136.  333.  345 

Beech  v.  Ford,  7  Ha.  208 46 

Beecher  v.  Conradt,  13  N.  Y.  lOS.   432 
Beer  v.  London,  etc.,  Hotel  Co  ,  L. 

R.  20  Eq.  412 117,  129 

Beeston  v.  Stutely,  6   W.    R.    206. 

373,  514 
Beioley  v.  Carter,  L.  R.  4  Ch.  230. 

278,  283 

Bell  V.  Bemen,  3  Murph.  273 66 

V.  Bruen,  1  How.  (U.  S.)  I(i9.  223 
V.  Holtby,  L.  R.  15  E(i  178.  ..  285 
V.  Howard,  9  Mod.  302..   23(5, 

350,  325 
V.   Thompson,    34    Ala.    633. 

435,  504 
V.  Wan  en,  39  Tex.  106...   12,  215 

Bellamy  v.  Debenham,  45   Ch.    D. 

481 88,  121 

[1891]  1    Ch. 

412 416 

V.  Rag'sdale,  14  B.  Monr. 

293 413,  453 

Bellas  V.  Hays,  5  S.  &  R.  427..  474,  479 
Bellenger  v.  Ketts,   6  Barb.    273. 

436.  4eo 
Bellous   V.   Stone,    14   N.    H.    175. 

332,  340,  344 


xxn 


TABLE   OF  CASES   CITED. 


PAGE. 

Bellringer  v.  Blagrave,  1  De  G.  & 
Sm.63 , 252 

Bell's  Appeal,  23  P.  F.  Smith,  465.  449 

Benall  v.  Gray,  80  N.  Y.  517 423 

Benedict  v.  Lynch,  1  Johns.  Ch.  370. 

112,  229,  462 

V.  Smith,  10  Pai^e,  126. ..   116 

V.  Webb,  98  N.  Y.  460  ... .   286 

Bennett  v  Abrams,  41  Barb.  619..     20 

V.  Fowler,  2  Beav.  302 219 

V.  Hyde,  92  Cal.  131 462 

V.  Welch,  25  Ind.  140.  .448,  474 

Benson  v.  Cutler,  53  Wis.  107 486 

V.  Lamb,  9  Beav.  502 469 

Bentley  v.   Whittemore,    3    C     E 

Green,  366 317 

Benton  v.  Pratt,  2  Wend.  385 296 

V.  Shreeve,  4  Ind.  66    276 

Bentz  V.  Eubanks,  41  Kan.  28  ....  90 
Beresford    (Lady)    v.    Driver,    14 

Beav.  387 18 

Berger  v.  Armstrong-,  41  Iowa,  447.  33 
Bermingham  v.  Sheridan,  33  Beav. 

660 23 

Bernard  v.  Flinn,  8  Ired.  204.  .196,  203 

V.  Meara,  12  Ir.  Ch.  389. .   384 

Berrien  v.  McLane,  1  Hoff.  Ch.  421.  353 

Berry  v.  Hartzell,  91  Mo.  132 193 

V.  Van  Winkle,  1  Green  Ch. 

269 540 

v.    Whitney,    40    Mich.    65. 

314,  321 

v.  Young,  2  Esp.  640 484 

Best  v.   Stow,   2   Sandf.    Ch.   298. 

290,  300,  315,  331,  332,  349,  523 
Bettesworth  V.  Dean,  etc.,  St.  Paul's, 

Sel.  Cas.  in  Ch.  66 45,  360,  375 

Bevans  v.  Young,  13  N.  Y.  S.  497..  182 
Beverly  V.  Peters,  10  Peters,  532..   389 

Beyer  v.  Marks,  2  Bush.  160 504 

Bidwell  V.  Astor   Ins.  Co.  16  N.  Y. 

263 346 

Bigelow  V.  Armes,  108  U.  S.  10 . . . .  189 
Bigg  V.  Strong,  W.  R.  (1857-8)  173.  116 
Pigler  V.  Baker  (Neb.),  58  N.  W. 

1026 174,  234 

Billingslea  v.  Ward,  33  Md.  48. .  . .  154 
Binham  v.  Bradford,  L.R.  5  Ch.519.  215 
Binks  V.  Rokeby,  Lord,  2  Sw.  222. 

497,  499,  520,  524 
Binney  v.  Annan,  107  Mass.  94 25 


PAGE. 

Birbeck  v.  Kelly,   9   Atl.  R.   (Pa.) 
313 174 

Birch  v.  Joy,  3  H.  L.  Cas.  565 497 

Birchett  v.  Boiling,  5  Munf.  442.. .     31 

Bird  V.  Boulter,  4  B.  &  Ad.  443.. .   118 

V.  Hall,  30  Mich.  374..  .   372,  531 

V.  Logan,  35  Kan.  228 251 

Bishop  of  Winchester  v.  Mid.  Hants 

Ry.  Co.,  L.  R.  5  Eq.  17 545 

Bissell  V.  Farmers  and  Mech.  Bk., 

5  McLean,  495 24 

V.  Mich.  So.,  etc.,  R.  R.   22 

N.  Y.  262. 76,77,     78 

V.  Terry,  69   111.  184 114 

Black  V.  Black,  15  Geo.  445 159 

V.  Cord,  2  Har.  &  G.  100.. .   273 
Blackett  v.  Bates,  L.  R.  1   Ch.  117, 

26,  231,  384 
Blacklow  V.  Lans,  2  Hare,  40. 

288,  491 

BJackmer  v.  Phillips,  67  N.  C.  340.  400 

V.  Stone,  51  Ark.  489...     25 

Blackwell  v.  Ryan,  21  S.  C.  112. ..   474 

Biackwilder   v.   Loveless,   21   Ala. 

374..   53,55,57,62,251,255,207,  276 
Blagden  v.  Bradbear,  IC  Ves.  406. 

123,  135,  201,  210,  218,  227 
Blair  v.  McDonnell,    1    llalst.   ~Z<\. 

327 333 

V.Smith,!   Bennett,  273....    171 
V.  Snodgrass,  1  Sneed,  1....    12'J 
Blake  v.  Flatley,  44  N.  J.  Eq.  228. 

11,  267 

V.  Holley,  14  Ind.  383 76 

Blakeley  v.  Brady,  2   Dr.   &  Wal. 

311 80 

Blakeney  v.  Ferguson,  3  Eng.  272.  179 
Blakeslee  v.  Blakeslee,  10   Harris, 

237 170,  349 

BUlock  V.  Waggoner,  82  Ga.  122...  192 
Blanchard  v.  Detroit,  o*-  ,  R.    R., 

31  Mich.  44 10, 

11,192,  230 
V.  Moore,  4  J.  J.  Marsh. 

471 314 

Blankenship  v.  Spencer,  31  W.  Va. 

.-10 193 

Blatchford  \-.  Kirkpatrick,  6  Beav. 

232 169 

Bleakley  v.  Smith,  11  Sim.  150 ... .    106 
Bleakley's  Appeal,  66  Pa.  St.  187. .     12 


TABLE    OF  CASES   CITED. 


XXUl 


PAGE. 

Bleeker  v.  Franklin.  2  E.  D.  Smith, 

93 109,  117 

Blodgett   V.   Hildreth,    103    Mass. 

4S4 204 

V.  Hobart.  ISVt.  414....    34S 
Blore  V.  Sutton,  3  Mei-.  237. 

113,  151,  217 
Blosse  V.  Clanmorris.  Lord,  3   Bli. 

62 279 

Blount  V.  Blount,  1  Hawks,  36.'i. 

10,  497,  500 

Blow  V.  MajTiard.  2  Leigh.  29 136 

Bluck  V.  Gompertz,  7  Exoh.  862. ..   107 
Blundell  v.  Brettargh.  17  Ves.  232.  213 

Blunt  V.  Tomlin.  27  111.  03 174 

Boardman  v.  Lake   Shore,   etc.   R. 
Co.,  84  N.  Y.  157. 

21,  24,     33 
V.  Mostyn,  6  Ves.  467. 

164,  192,  194,  429,  431 
V.    Spoouer,    13    Allen, 

353 108,  120 

Bobo  V.  Grimke,  1  McMullan's  Eq. 

304 17 

Boburg  V.   Prahl,  (Wyo.)  23  Pac. 

Rep.  70 550 

Bodine  v.  Glading,  21  Pa.  St.   50, 

229,  233,  237 
Bodwell  V.  Bodwell  (Vt.)  28  Atl. 

Rep.  870 400 

Boehm  v.  Wood,  IJ.  &  W.  419. .  462,  468 
Boganv.  Camp,  30  Ala.  276... 546,  549 
V.  Daughdrill,  51  Ala.  312. 

10,  11,  52,  57,  65,  422 
Boggs  V.  Bodkin,  32  W.  Va.  566. . .  286 
Bohanan  v.    Bohanan,  96  111.    591. 

185,  268 
Bold  V.  Hutchinson,  20  Beav.  250.  97 
Bolingbroke's  (Lord)  Case,   1   Sch. 

&Lef.  19 504 

Bomier  v.  Caldwell,  Harring.   Ch. 

67 179,  444 

Bond  V.    Hopkins,    1   Sch.    &  Lef. 

433 136,  145 

Bonebright  v.  Pease,  3  Mich.  318...     66 
Bonnet  v.  Babbage,  19  N.  Y.  Supp. 

934 527 

Bennett  v.  Sadler,  14  Ves.  526 352 

Bonnewell  v.  Jenkins,  8  Ch.  D.  74..     89 
Boone  V.   Mo.   Iron  Co.,   17  How. 
340 400 


Booten  v.  SchafTer,  21  Gratt.   474. 

261,  265,  273,  275,  39S,  458,  474 
Booth  V.   Pollard,  4   Y.    &  V.    Kx. 

61 . .   28,  384 

Boozer  v.  Teague,  27  S.  C.  348 ... .    J  54 
Borden  v.  Curtis,  46  N.  .J.  E(i.  46S. 

171,  540 

Border's  v.  Murphy,  78  111.  81 .531 

Boi-ell    V.     Dann,     2     Hare,     452. 

269,  273 
Boi-n's  Appeal,  132  Pa.  St.  467 . .  .  451 
Borritt  V.  Gomeserra,  Bunb.  94...   192 

Borst  V.  Cory,  16  Barb.  136 136 

Boi-uff  V.  Hud.son  (lud.).  37  N.    I-:. 

Rep.  786 189 

Boston  &  Me.  R.  R.  v.   Bartlett,   3 

Cush.  224 84,  23.5,  479 

Bost\vick  V.  Beach,  103  N.  Y.  414. 

389,  520 

V.  Beach,  105  N.  Y.  661. 

499,  504 

V.  Williams,  36  111.  65.  ..  437 

Boswell  V.  Coakes,  27  Ch.  D.  424..   353 

V.  Mendham,  6  Mad.  373...  288 

Botsford  V.  Burr,  2  Johns.  416 325 

V.  Wilson,  75  111.  132 422 

Boucher  v.  Van  Buskirk,  2  K.    K. 

Marsh.  345 110,  237 

Bouck  V.  Wilbur,  4  Johns.  Ch.  405.     26 
Boulder  Valley  Ditch  Mining,  etc., 
Co.  V.  Farnham  (Mont.),  29  Pac. 

R.  277 150,  1.59 

Bourget  v.   Monroe,  58  Mich.   563. 

268,  383 
Bourland  v.  Co.  of  Peoria,   16  111. 

538 122 

Boutwell  V.  O'Keefe,  32  Barb.  434.  139 
Bowen  v.  McCarthy  (Mich.),  48  N. 

W.  Rep.  155 435 

Bower  v.  Blessing,  8  S.  &  R.  243...     83 
V.    Bright,    13    Pi-ice,    698. 

421,  520,  523 
V.  Cooper,  2  Har.;,  408.. 218,  273 

Bowers  v.  Cator,  4  Ves.  91 164 

Bowes  V.  Heaps,  3  V.  &  B.  117  ... .   364 
V.  Law,  L.  R.  9  Eq.  636 ....      32 

Bowie  V.  Berry,  3  Md.  Ch.  359 391 

Bowles  V.  Round,  5  Ves.  508 305 

V.    Waller.    1   Haye.s,    441. 

420,  620 
Bowman  V.  Bates.  2  BibI).   47 3.54 


XXIV 


TABLE    OF   CASES   CITED. 


I'Al-iE. 

Bowman  v.  Bittenbendei',  4  Watts, 

290 344 

V.  Cunningham,  78  111.  48. 

55,  223,  244 
V.  Walford,   80  Va.  218. 

163,  167 
Bowser  v.  Cra\ener,  6  P.  F.  Smith, 

132 ,   325 

Boyd   V.    Bi'inckin,    55    Cal      427. 

93,  97,  109.  531 
V.  Graves,  4  Wheat.  513....  171 
V.  Schlesinger,  59  N.  Y.  301. 

220,  474 
Boydell  v.  Drummond,  11  East,  142.  120 
Boyes  v.  Green  Mt.  Falls  Town  and 
Imp.    Co.   (Colo.    Api^.)  33   Pac. 

Rep.  77 410 

Boynton  v.   Hazelboom,  14  Allen, 

107.. 290,  291,  300,  311,  335 
V.  Hubbard,  7  Mass.  112..  362 
Boys  V.  Ayerst,  6  Mad.  316. 

91,  94,  110,  112,  239 
Boze  V.  Davis,  14  Tex.  331..  137, 185,  186 

Bozen  v.  Farlow,  1  Mer.  459 300 

Brace  v.  Wehnert,  25  Beav.  384....     28 
Bracegirdle  v.   Heald,  1  B.  &  Aid. 

727 141 

Bradbury  v.  White,  4  Greenl.  391. 

315,  330 
Bradford  v.  Foster,  87  Tenn.  4  . . . .   238 
V.   Un.   Bk.   of  Tenn.  13 

How.  57 330,  332, 

333,  340,  341,  342 
Bradford,  etc.  R.  R.  Co.  v.  N.  Y.,  L. 

E.  &W.  R.  R.  Co.,  123N.  Y.  316.     67 
Bradley  v.  Owsley  (Tex.),  11  S.  W. 

R.1052 183 

Brady  v.  Parker,  4  Ired.  Eq.  430...  345 
Brady's   Appeal,    66   Pa.    St.    277. 

61,  351,  431 
Braentigan  v.   Edwards,   38  N.  J. 

Eq.  542 86 

Bragg  V.  Olson,  128  lU.  540 476 

Braraley  v.  Alt,  3  Ves.  620 356 

Brashier  v.  Gratz,  6  Wheat.    528. 

416,  446,  455,  466,  469,  478,  490 
Brassell  v.  McLemore,  50  Ala.  476. 

447,  449,  486,  488 
Brawdy  V.  Brawdy,  7  Barr.  157...  167 
Braybroke  (Lord)  v.  Inskip,  8  Ves. 
428 280 


PAGE. 

Brealey   v.    Collins,    Younge,   317. 

290,  300 
Breckenridge   v..  Chickinbeard,   2 
Littell,       127. 

400,  404,  474,  518 
V.  Crocker,  78  Cal. 

529 126 

Brennan    v.    Brennan,   21    N.    Y. 

Supp.  195 189 

V.  Bolton,  2  Dru.  &  Wal. 

349 153,  156,  176 

Brenner  v.  Luth,  28  Kan.  581 315 

Brent  v.  Green,  6  Leigh,  16 123 

Brett  V.  East  India,  etc.,  Co.  12  W. 

R.  596 67,  383 

Brcttel  V.  Williams,  4  Wils.   H.   & 

G.  623 121 

Brewer  V.  Brewer,  19  Ala.  481 166 

V.   Broadwood,  22   Ch.    D. 

105  230 

V.  Brown,  28  Ch.  D.  309. ..  326 

V.  Connecticut,  9  Ohio,  189.  462 
V.    Herbert,    30    Md.    301. 

388,  398,  417,  479 

V.  Wall,  23  Tex.  585 528 

V.  Wilson,  2  C.   E.   Green, 

180  192 

Brewer's  Appeal,  104  Pa.  St.  417.  20 

Brewster  v.  Clarke,  2  Mer.  75 68 

Brewster  &  Co.  v.  Tathill   Spring 

Co.,  34  Fed.  Rep.  773 251 

Brick  V.  Whelly,  1  Mad.  7,  «, 373 

Bridger  v.  Rice,  IJ.  &  W.  74 252 

Briggs  V.  Partridge,  64  N.  Y.  357.  129 

Bright  V.  Bright,  41  III.  101 185 

Bringham  v.  Bringham,  1  Ves.  126.  320 

Brink  v.  Steadman,  70111.  241.  223,  478 

Brinkley  v.  Hann,  Drury,  175 251 

Brinton  v.    Van   Cott     (Utah),    33 

Pac.  R.  218 162,  268 

Brisband  v.  Boyd,  4  Paige,  17 95 

B2-istow  v.  Wood,  1  Coll.  C.  C.  480.  279 

Brix  V.  Ott,  101  III.  70 215 

Broadwell  v.  Broadwell,  1  Gilman, 

599 321,  327 

V.  Getman,  2  Denio,  86..  141 

Brock  V.  Cook,  3  Port.  464 179 

V.   Hidy,    13   Ohio  St.    307. 

433,  435,  444 
B]-ockleband  v.  Whitehaven,  Junct. 

Ry.  Co..  15  Sim.  632 43 


TAIU.E    OF  CASES    CITED. 


XXV 


I'AfiK. 

Brodie  v.  St.  P:iul,  1  Y.^s.  :fc>t; 120 

Bromley  v.  JcRiws,  2   Vera.  415. 

13.'),  210,  229 
Bronson  v.  Cahill,  4   McLean,  19. 

229,  230,  237 

Brooke  v.  Beny,  2  GiU.  83 276 

V.  Garrod,  3  K.  &   J.   608. 

•  459,  482 

V.  Hewett,  3  Ves.  253.  407,  553 
(Lord)  V.  Roundthwaite,   5 

Hai-e,  298 

290,  300,  301,  515 

Brooks  V.  Ruft;  37  Ala.  371 20 

V.  Wheelock,  11   Pick.  439. 

138,  196 
Brophy  v.  Hag-an,  12  Pa.  Co.  Ct.  R. 

365 163 

Broug-h  V.  Oddy,  1  R.  &  My.  25. . .  67 

Broughton  v.  Coffer,  18  Gratt.  184.  324 

Brown  v.  Bellows,  4  Pick.  189..  135,  211 

V.  Bonner,  8  Leig-h.  1 332 

V.  Browi,  1  Dick.  62 18 

V.  BrowTi,  29  Hun,  498.  193,  268 

V.  Brown,  47  Mich.  378....  193 
V.  Brown,  33  N.  J.  Eq.  650. 

11,  88,  145,  150,  201,  207 
V.  Copping-er,  4  Ir.  Ch.  Rep. 

72 259 

V.    Covelland,    6    Cal.    566. 

437,  474 

V.  Crane,  47  Geo.  483 12 

V.  Desmond,  100  Mass.  269.  10 

V.  Eaton,  21  Minn.  409 433 

V.  Finney,  3   P.    F.    Smith, 

373 _ 192 

V.  Gammen,  14  Me.  276 437 

V.  Galliland,  3  Dessau,  539, 

13,  24,  66 
V.  Haff,  5  Paige,  235 ... .   8, 

449,  489 

V.  Hayes,  33  Geo.  136 400 

V.    Hoag,    35     Minn.    373. 

145,  149,  154 

V.  Jones,  46  Barb.  400 174 

V.  Lynch,  1  Paige,  147 203 

V.  Montgomery,    20   N.    Y. 

287 353 

V.  Munger,  42  Minn.  482. . .  225 
V.  PoUai-d  (Va.),  17  S.  E.  6. 

139,  159 
V.  Ritter,  26  N.  J.  Eii.  456.  551 


I'AUE. 

Brown  v.  Slea,  103  U.  S.  828 238 

V.  Sutton,  129  U.  S.  238...,    194 

Brown's  Ajippal,  62  Pa.  St.  17 32 

Browne  v.  Warner,  14  Yes.  412....   371 
Browne's  Estate,  5   Ir.  J.   Ch.  (N. 

8.)185 427,  522 

Brownl/ee  v.  Fen\vick,  103  Mo.  420.  1S)3 

Bruce  v.  TiLson,  25  N.  Y.  194 436 

Bruck  V.  Tucker,  42  Cal.  346..   52, 

56,  57,  62 
Brumtield  v.  Palmer,  7  Blackf.  227.  448 
Brumfit  v.  Slorton,  3   Jur.  (N.  S.) 

1198 440 

Brush-Swan     Electric     L.     Co.    v. 
Brush  El.  Co.,  41  Fed.  Rep.  163, 

169 33,     34 

Brush-Swan     Electric     L.     C.    v. 
Brush  El.  Co.,  52  Fed.  Rep.  37,  2 
C.  C.  A.  669,  1    U.  S.  App.  563..  400 
Bryan  v.  Re.ad,  1   Dev.  &  Bat.  Ch. 

78 400,421,  51S 

V.  Robert,  1  Strobh.  335 17 

V.  WoUey,  1  Bro.  P.  C.  184..  373 
Bryant  v.  Booze,  55  Geo.  438. 

372,  531,  553 
V.    Busk,  4   Russ.    1. 

219,  408 

V.  Wilson,  71  Md.  440 437 

Bryant,  In  re,  44  Ch.  D.  218 416 

Bubier  v.  Bubier,  24  Me.  42. . .   13, 

26,  66,  138 
Buchanan  v.  Atwell,  9  Humph.  516. 

400,  421,  518 
V.   Lorman,    3    Gill.    77. 

311,  400 

Buckv.  Buck,  11  Paige,  170 550 

V.  Dowley,   16   Gray,  555. 

138,  340,  341 
V.  Pickwell,  1  Wiil.  (Yt.)  167. 

133,  135 

V.  Smith,  29  Mich.  166 369 

Buckland  v.  Hall,  8  Yes.  92 407 

V.  Papillon,  L.R.  2  Ch.  67.     10 
Buckle   V.  Mitchell,    18   Ves.    100. 

241,  287 
Bucklen  v.  Hasterlick  (111.).  40  N. 

E.  Rep.  561 433 

Buckmaster    v.    Harroj),    7     Yes. 

346  ...  40,  117,  123,  145,  149,  153, 

155,    156,    159,   163,   171,    172, 

173,  200,  550 


TABLE   OF  CASES   CITED. 


Buckmaster  v.  Thompson,  36  N.  Y. 

55S 223,  226,  238 

Duel  V.  Miller,  4  N.  H.  196 325 

Buffet  V,  Troy  &  B.  R.  R.,  40  N.  Y. 

168 76,     78 

Buford  V.  Guthrie,  11  Bush.  677....  489 
BugTvell  V.  Bug-well,  72  Ga.  92 ... .  55 
Bull  V.  Hutchens,  32  Beav.  615 ... .  278 
Bullock  V.  Adams,  5  C.  E,  Green, 

367 444,  454,  462,  465,  474 

Bumburger  v.  Clippeng-er,  5  W.  & 

S.   311 417 

Bumgardner  v.  Edwards,  85  Ind. 

117 171 

V.  Leavitt  (W.   Va.), 

13  8.  E.  67  ....     24 
V.  Leavitt  (W.  Va.), 

13S.  E.  67 7 

Bunch  V.  Hurst,  3  Dessau.  Eq.  273.  276 
Bunn  V.  "Winthrop,  1  Johns.  Ch.  329.  80 
Burges  v.  Wheate,  1  Edw.  186 ... .    389 

Rurke  v.  Seeley,  46  Mo.  334 55,  371 

V.    Serril,  80    Pa.  St.    413. 

373,  527 
V.    Smyth,    3    Jon.    &   Lat. 

193 10,  474.  480 

Burke's   Appeal,    75    Pa.    St.   141. 

373,  526 
Bui'khalter  v.   Jones,    32   Kan.    5. 

135,  210,  221,  335 

Burley  V.  Irwin,  72  Ala.  505 199 

Burling  v.  King,  66  Barb.  633.. 79,  400 
Burlingame   v.    Rowland,    77    Cal. 

315 185 

Burnap  v.  Sidberry,  108  N.  C.  307.  400 
Burnell  v.  Brown,  1  J.  &  W.  168. 

419,  519,  520 

Burnett  v.  Kullek,  76  Cal.  535 223 

Bums  V.  Daggett,   141  Mass.  368, 

373 167,  182 

V.  Fox,  113  Ind.  205 167 

V.  Sutherland,  7  Barr.  103. 

185,  192,  194 

Burr  V.  Beers,  24  N.  Y.  178 549 

Burrill  v.  Garst  (R.  I.),  31  Atl.  Rep. 

436 553 

Burrow  v.  Scammel,  19  Ch.  D.  175.  504 
Burrows    v.    Lock,    10   Ves.    470. 

273,  298 

Burt  V.  Wilson,  28  Cal.  132 199 

Burtch  V.  Hogge,  Harring.  Ch.  31.  273 


PAGE. 

Burton   v.    Landon   (Vt.),   29    Atl. 

Rep.  374 21,  214 

V.  LeRoy,  5  Sawy.  510 79 

Burwell  v.  Jackson,  9  N.  Y.  535. ..  437 

Busevi  V.  Serra,  41  Ves.  313 406 

Busey  v.  Hardin,  3  B.  Mon.   407. 

353,  394 
Butcher  V.  Stapely,  1  Vern.  363...  164 
Butler  V.    Haskell,  4   Dessau.    Eq. 

651 271 

V.  Hicks,  11  Sm.  &  Mar.  79.     17 

V.  Mulehille,  1  Bli.  137 257 

V.    O'Hear,    1    Dessau.    Eq. 

382 278,  284,  417 

V.  Powis,  2  Coll.  C.  C.  156. 

69,  235 
Butman  v.  Porter,  100  Mass.  337. 

79,  229,  270,  396 

Butt  V.  Mallon,  151  Mass.  477 286 

Butterfield  v.  Heath,  15  Beav.  408.  287 
Butterworth  v.  Walker,  13  W.   R. 

168  . 329 

Butts  v.  Andreus,  136  Mass.  221...  285 
Buttz  V.   Colton  (Dak.),  43  N.  W. 

Rep.  717 196 

Buxton  V.  Lister,  3  Atk.  384 7, 

13,  19,  20,  21.  28,  44,  207,  369 
Buys  V.  Eberhardt,  3  Mich.  524  ...  26 
Byers  v.  Denver  Circle  R.  Co.  13 

Colo.  552 166,  448 

V.  Surget,  19  How.  309...  274,  276 

Byrd  v.  Odem,  9  Ala.  756 166,  179 

BjTue  V.  Acton,  1  Bro.  P.  C.  186  . .   252 
v.    Romaine,    2    Edw.    Ch. 

445 155,  156  180 


C. 

Caballero   v.   Henty,  L.   R.   9  Ch. 

447 420,424,  509,  520 

Cabeen  v.  Gordon,  1  Hill  Ch.   51. 

229,  237,  276 

Cabot  V.  Haskins,  3  Pick.  83 108 

Cadman  v.  Horner,  18  Ves.  10.    291,  311 
Cadwalader's     Appeal,     7    P.     F. 

Smith,  158 474,  479 

Cagger  v.  Lansing,  43  N.  Y.  550  . .   167 
Cairacross  v.   McGrain,    37   Minn. 

130  198 

Calanchini  v.  Branstetter,  84   Cal. 

249 167,  238,  477 


TAliLE    OF  CASES    CITED. 


XXVU 


PAGE. 

Calcraft  v.  Ro(»l)u.k,    1    Ves.    221. 

410,  407,  519 
Caldwell  V.  Cun-ing-toH,  0  IVt.  80.  180 
V.    Myei"s,     Hardin,     551. 

13,  17,     66 
V.    Tagg-ort,    4    Pet.    100. 

,     546,  553 
Calhoun  v.  Hayes,    8  Watts   &   S. 

127 171 

Calkins  v.  Falk,  39  Barb.  620 100 

Callaghan   v.  Callag'han,    8   CI.    & 

Fin.  374 225,  277 

Callanan  v.  Chapin,  158  Mass.  113.  124 
Callen  v.  Fergaison,  5  Casey,  247.  480 
Callihan  v.  Hall,  4  W.  Va.  531  ....  550 
Calloway  v.  "Witherspoon,  5  Ired. 

Eq.  128 257 

Calverly  v.    Williams,   I  Ves.  210. 

331,  334 
Calvert  v.  Gordon,  1  Man.  k,  Ry. 

494 235 

Cambrelling  v.  Purton,  125  N.  Y. 

610 286 

Camden,  etc.,  R.  R.  v.  Stewart,  3 

C.  E.  Green,  480 103,  223 

Cameron  v.  Ward,  8  Geo.  245 206 

Camp  V.  Moreman,  84  Ky.  635...,    120 
V.    Wiggins,    72   Iowa,   643. 

432,  488 
( 'ampbell    v.  Campbell,   2     Jones, 

Eq.  3G4 207 

V.  Fetterman,  20  W.  Va. 
308..116, 145, 154, 

174,  103 
V.  Hay,  2  Moll.  102....  516 
V.  Hicks,    19    Ohio    St. 

433 474,  470 

V.  Ingilby,  21  Beav.  507. 

405,  548 
V.  Ketcham,  1  Bibb.406.  257 
V.  Leach,  Ambl.  749  .. .  231 
V.  Lon.  &  Br.  Ry.  Co.  5 

Hare,  510 457 

V.  McClenachan,  6  S.  & 

R.  171 324 

V.  Medbury,  5  Biss.  33.. 

422,  486 
v.Rust  (Va.),  8  S.E.  004.  385 
V.  Shriim,  3  Watts,  60..  440 
V.  Spencer,    2    Binney, 

133 265,  266,  277 


PAGE. 

Candler  v.  Candler,  Jac.  231 380 

Canedy  v.  Marcy,  13  Gray,  373  ...  319 

Cann  v.  Cann,  3  Sim.  447 r)17,  524 

Cannaday  v.  Shepard,  2  Jones  Ivj. 

224 258 

Cannel  v.  Buckle,  2    P.  Wms.  242. 

'                                                42,     45 
Canterbury  Atpieduct   Co.  v.  Ens- 
worth,  22  Conn.  608 315 

Canton  Co.  v.  North,  etc.,  R.  R.,  21 

Md.  383 121 

V.   B.    &    0.    Ry.    Co. 
(Md.)  20  Atl.  Rep. 

821 416,  423 

Cappun  V.  Harris,  Bumb.  135. .   22,     06 

Carey  v.  Staftbrd,  3  Sw.  427 375 

Carleton  v.  Wright,  73  Ga.  8 .546 

Carlisle   v.   Carlisle,   77   Ala.    339. 

55,  61,  223,  254 
V.  Fleming,  1    Harr,  421. 

145,  ISO,  193 

Carmack  v.  Masterton,  3   Stew.  & 

Port,  411 130 

Carmichal  v.  Carmichael,  72  Mich. 

76 268 

V.  Vandebeer,  50  Iowa, 

651 301 

Carne  v.  Mitchell,  15  L.  J.  Ch.  287.  371 

Carney  v.  Carney,  06  Mo.  353 166 

Carolan  v.  Brabazon,  3  Jon.  &  Lat. 

200 375 

Carpenter  v.  Brown,  6   Barb.  147.  432 
V.   Carpenter,  10   N.   V. 

Supp.,  486 244 

V.  The    M.    Ins.    Co.    4 

Sandf.  Ch.  408.. 21.     24 

Carr  v.  Duval,  14  Pet.  77 82, 

00,  224,  227 

V.  Hays,  110  Ind.  408 120 

V.  Passaic  Land   Co.  7   C   E. 

Green,  85 215,  223 

Carrier  v.  Howard,  14  Gray,  511.  553 
Carringtou  v.  Anderson,  5   Mumf. 

32 123 

Carrodvis  v.  Sharp,    20   Beav.    50. 

407,  499 

Carroll  v.  Wilson,  22  Ark.  32 .540 

Carrollsv.  Cox,  iniowa,  455..   168,  174 
Carskaddon  v.  Kennedy,  40  N.   J. 

Eq.  259 109,  233,  259 

Carson  v.  Mnlvany,    40  Pa.  St.  88.  238- 


XXVUl 


TABLE   OF  CASES   CITED. 


PAGE 

Carter  v.  Carter,  Forrest,  271 396 

V.  Dean  of  Ely,  7  Sim.  211 

455,  458 
V.    Phillips,    144    Mo.    100, 

102 458,  462 

V.  Thompson,  41  Ala.  375..  435 
V.  U.  S.  Ins.  Co  1  Johns.  Ch. 

463 66 

V.  Williams,   L.    R.     9    Eq. 

678 32 

Carver  v.  Richaitis,  6  Jur   (N   S  ) 

667 421,  520 

Casamajor  v.  Strode,  2  My.  &   K. 

96 419,  425,  426,  519 

Casey  v.  Casey,  14  111.  112 353 

Casler  v.  Thompson,  3  Green.   Ch. 

59 179 

Cass  V.  Rudele,  2  Yem.  280 396 

Cassell  V.  Cassell,  104  111.  361 82 

Castle  V.  Wilkinson,  L.    R.    5   Ch. 

534 373,  508,  525 

Castlebury  v   Maynard,  65  N.  Cas. 

281 286 

Caswell  V.  Gibbs,  33Mich  331..  33,  381 
V   West,  3  T.  &  C.  383.. ..   24G 
Cathcart  v.  Robinson,  5   Pet.  263. 

258,  273,  276,  321 

Catlett  V.  Bacon,  33  Miss.  269 164 

Caton  V.  Caton,  L.  R.  2  H.  L.  127. 

100, 106, 145,  147,  149,  158 
Catt  V.  Tourle,  L.   R.  4   Ch.   654. 

31,  32,  224 
Cattell  V.  Corrall,  4  Y.  C.  Ex.  237. 

286,  288 
Causton  v.  Macklew,  2  Sim  242. ..   286 

Cavalli  v.  Allen,  57  N.  Y.  508 347 

Cavend<  r  v.  Wadding-ham,   2   Mo. 

App.  5r>l 257 

Cavendish  v.  Cavendish,  L.   R.   10 

Ch.319 424 

Cay  lor  v.  Roe,  99  Ind.  1 197 

Chabot  V.  Winter  Park  Co,  (Fla.) 

15  So.  Rep.  756 469 

Chadbourne   v.    Stockton    Sav-    & 

LoanSoc,  8S"Cal.  636 400 

Chad  well  v.  Winaton,  3  Tenn    Ch. 

110 402 

Chadwick  v.  Maden,  9  Hare,   188. 

259,  545 
Chafeex.  Spragiie  (R.  I.),  13   Atl. 
Rep.   121 19 


PAGE.- 

Chaffee   v     Middlesex    R.    R.   146 

Mass.   224  24 

Chamberlain  v.  Ag-ar,  2  V.  &  B.  262.  205 
V.  Bagley,   11    N.    H. 

234 69 

V.  Blue,  6  Blackf.  491. 

14,     21 
V.Lee,    10  Sim.    444. 

489,  491 
V.  Manning-,  41   N.  J. 

E(i.   651 181 

v.  Thompson,  10  Conn. 
243....    3.32,  344,  348 
Chamberlaine  v.   Chamberlaine,   2 

Freem.  34 205 

Chamberlin  v.  Robertson,  31  Iowa, 

408 232 

Chambers  v.  Alabama  Iron  Co.,  67 

Ala.  353 109 

v.  Le  Compt,  9  Mo.  569. 

14."),  150,  191 
v.  Livermoie,  15   Mich. 

381 315,  331,  431 

Chambliss  v.  Smith,  30   Ala.    366. 

166,  207 
Chamness  v.   Crutchfield,   2   Ired. 

Eq.  148 314 

Champei-nowiie  v.  Brooke,  3   CI.  & 

Fin.  4 500 

Champion  v.  Brown,  6   Johns.  Ch. 

403 388,  555 

V.  Plnmmer,  1   B.  &  P. 

(N.  R.)  252...   126,  209 
Champlin  V.  Laytin,  18  Wend.  409. 

317,  321 
V.  Parish,  11  Paig-e,  405. 

108,  109 
Chapman  v.  Allen,  Kirby,  399 ... .   332 

V.  Lee,  55  Ala.  616 281 

V.  Mad   River   R.    R.,    6 

Ohio  St.  119 , 532 

V.  Mnrg-an,  55  Mich.  124.     86 

V.  West,  17  N.  Y.  125....   552 

V   Wilbur,  4  Oreg   362..     12 

Chappell  V.  McKnig-ht,  108  111.  570.  394 

Charleston  v.   Tumpe.  Co.  v.  Wil- 

ley,  16  Ind.  34 76 

Charnley  v.  Hansbury,  1  Harris,  1 6.  192 
Chartier  v.  Marshall,  51  N.  H.  400. 

12,  540 
Chasf  v.  Lowell,  7  Gray,  33 123 


TABLE   OF  CASES   CITED. 


XXIX 


PAGh 

Chastain  v.  Smith,  30  Geo   96 162 

Chatou  V.  Gower,  Finch,  164 267 

Chautau(]ua  Co.  Bk.  v.  Risley,  19 

N.  Y.  369 76 

Cheale  v.  Kin  ward,  3  De  G.  &   J. 

27 22,     23 

Cheney  v.  Gleason,  125  Mass.  166. 

301,  353 

V.  Libby,  134  U.  S.  68 434 

Cherbonnier  v.  Cherbonnier  (Mo.), 

18  S.  W.  Rep.  1083 223 

Cherry  v.  Heming',  4  Wela.   II.   & 

Gord.  631 141 

Chesapeake,     etc.,     Can.     Co.     v. 

Young,  3  Md.  480 1.'52,  153, 

156,  192 
Chesman  v.  Cumraing^,  142  Mass. 

65   283 

Chess's  Appeal,  4  Pa.  St.  52 435 

Chester  v.  Urevick,  23  Beav.  407..  205 
Chesterfiehl  v.  Janssen,  2  Yes.  124.  362 
Chesterman  v.  Mann,  9  Hare,  206.  236 
Chestnut  Hill   Res.    Co.  v.  Chase, 

14  Conn.  123 321 

Chettwood  v.  Brittain,  1  Green  Ch. 

430 199 

Chew  V.  Gillespie,  6  P.   F.  Smith, 

308 332 

Chicag-o  &  A.  R.  Co,  v.  N.  Y.,  L. 
E.  &  W.  R.  Co.,  24  Fed. 

Rep.  516 31,32,33 

B.  &  Q.  R.  Co.  V.  Boyd,  118 

111.    73.  163 
V.  Reno,  113 
111.    39. 

55,  360 
M.    &  St.   P.   Ry.    Co.  V. 

Durant,  44  Minn.  361  ..   511 
R.    I.    &    P.    R.    Co.    V. 
Union   Pac.   R.   Co.,  47 
Fed.  Rep.,  15,  29  ...31,     34 
R.    I.    &    P.    R.    Co.    V. 
W.  I.  &  N.  Ry.  Co.,  76 

Iowa ;    615 

etc.,  R.  R.  V.  Nichols,  57 

111.  464 12 

Chichester  V.  Mclntyre,  4  Bli.  (N.S.) 

79 , 210 

Chidester  v.  Springfield,  etc.,  R.  R., 

59  111.  87 215 

Child  V.  Abingdon,  Lord,  1  Ves.  94.  500 


I"AGE. 

Chil.l  V.  Comber,    3    Sw.    423,    n. 

109,  122,  159,  238,  239 
V.  Godolphin,  1  Dick,  39  ....    198 
Childers  v.  Childere,  1  De  G   &  J. 

482  203 

Childs  V.    Gillespie  (Pa.),  23  Atl. 

Repi,  312 84 

Chiles  V.  Nelson,  7  Dana,  281 95 

Chilhowie  Iron  Co.  v.  Gardiner,  79 

Ya.,  305 232 

Chilliner  v.  Chillin.M-,  2  Ves.   Sen. 

528 69 

Chinnock  v.  Marchioness  of  Ely,  4 

De  G.  J.    &  S.   638. 

81,  85,  89,  91,  113,  125 

V.  Sainsbury,    30    L.     J. 

(N.     S.)     Ch.     409. 

67,  383,  535 
Chipman  v.  Thompson,  Walk.  Ch. 

405 410 

Chippendale,  ex  parte,  4  De  G.  M. 

&G.  19 78 

Chissum  v.  Dewes,  5  Russ.  29 380 

Chrisman  v.  Miller,  111.  2:36 467 

Christ  V.  Diffenbach,  1  S.  &  R.  464.  344 
Christian  v.  Cabel,   22   Gratt.    82. 
398,  41.5,  413,  417, 
450,  479,  489,  490,  520 
V.  Ransome,  46  Geo.  138.  351 
Christian,  etc.,  Co.  v.  Bienville  W. 

S.  Co.  (Ala.),  17  So.  Rep.  352....  223 
Christie  v.  Simpson,  1  Rich.  407  ..  123 
Christy  v.  Barnhart,  14  Pa.  St.  260 

173,  174,  176,  192 
V.  Homoeopathic   Ins.    Co., 

93N.  Y.  345 21 

Church  V.  Sterling,  16  Conn.  402..  153 
Church   of   Advent   v.    Farrow,   7 

Rich.  E(i.378, 130,  137,  14.5, 

159,  193 
Cincinnati,    etc.,    R.    R.    v.   Wtu^h- 

burn,  25  Ind.  259 385 

City  Bank  of  Bait.  v.  Smith,  3  Gill. 

&  Johns.  265 69 

etc.,  Ins.  Co.    v.    Olmsted,    33 

Conn.   476 10 

of  London  v   Motford,  14  ^'^•s. 

58 457 

V.  Nsush,  3  Atk.  512. 
28,  48,  246,  262, 

263,  381,  50a 


TABLE   OF  CASES   CITED. 


PAGE. 

City  of  Natchez  v.  Vandervelde,  81 

Miss.  706 171 

Providence  v.  St.  John's 
Lodge,  2  R.  I.  46. . .  214,  237 
Claflinv.  Ostrom,  54  N.  Y  5S1....  548 
Clampet  v.  Bells,  39  Minn.  272  ... .  129 
Clapham  v.  Shillito,  7  Beav.  146  . .  301 
Claringbould  v.  Curtis,  21  L.  J.  Ch. 

541 67 

Clark  V.  Burnham,  2  Story,  1 123 

V.  Clark,  49  Cal.  586.. ..    12,  218 

V.  Dales,  20  Barb.  42 95 

V.  Denton,  36  N.  J.  Eq.  419.  286 
V.  Flint,  22  Pick.  231 ... ,  14,  19 
V.  Lyons,  25111. 105.  411,  437,  451 
V,  Moore,  1  Jon,  &  Lat.  723. .  337 
V.  Partridge,  2  Barr.  13,  324,  344 
V.  Redman,  1  Blackf.  380. ,  .  437 
V.  Reins,  12  Gratt.  98. 

373,  419,  504,  505,  519,  529 
V.  Riemsdyck,  9  Cranch,  153.  116 
V.  Rivers,  L.  R.  5  Eq.  91.. .  67 
V,  Sierer,  7  Watts,  107. 

420,  526,  529 
Clarke  v.  Batters.  1  K.  &  J.  242...     68 
V.     Grant,     14    Ves,     525. 

203,  314,  337,  341,  342 
V.  Koenig  (Nbr.),  54  N.  W. 

Rep.   842 223 

V.  Price,  2  J.  Wils.  157.,..  383 
V,  Reilly,  2  I.  R.  C.  L.  422.  174 
V.  Rochester,  etc.,  R.  R.,  18 

Barb.    350 258 

'Clarkson  v.  Edge,  12  W   R.  (M.  R.) 

518 32 

V.    Hanway,   2   P.  Wms. 

20.3 250 

Clason  V.   Bailey,    14   Johns.    484 

109,  112,  237 
Clay  V.  Deskins  (W.  Ya.),  15  S,  E. 

Rep.  85 400,  474 

V.  Raffold,  5  DeG.  &  Sm.  784.  490 

V.  Turner,  3  Bibb.  52 263 

Claytonv,  Frazier,  33Tex.91.  167,  526 
V.  Fleet,  10  Ohio  St.  544. . .  319 
V.  niingworth,  10  Ha.  451.  67 
V.  Newcastle,  Dk,  of,  2  Cas. 

inCh.  112 371 

CJleary  v.  Babcock,  41  111.  271 332 

V.  Folger,  84  Cal.  316. 

452,  453,  454,  462,  466 


PAGK. 

Cleaton  v.  Gower,  Finch,  164 502 

Cleaves  v.  Foss,  4  Greenl.  1 123 

Cleaveland  v.  Burton,  11  Yt.  138.,  333 
Cleere  v.  Cleere.  82  Ala.  581,,  273,  277 
Clegg  V.  Edmondson,  26  L.  J.    Ch. 

673 457,  478 

Clements  V.  Reid,  9  Sm.  &  Mar  535.  272 
v.  Welles,  L.  R.  1  Eq.  200.     32 
Clendenning  v.  Wyatt   (Kan.),   38 

Pac.  Rep.  792 268 

Clerk  V.  Wright,  1  Atk.  12. 

121,  135,  157,  210 
Clermont  (Lord)  v.  Tasburgh,  1   J. 

&  W.  1 12 291,  311,  514,  523 

Cliiford  v.  Turrell,  1  Y.  &  C.  C,  C, 

138 7,  25,  195,  232,  343 

Clifton  V.  Davis,  1  Pars.  Eq.  Cas.  31.  258 
Clinan  v.  Cooke,  1  Sch.  &  Lef.  22. 
89,   115,  119,  120,  129,   130,  132, 
136,  14.J,  146,  150,  159,   161,  161, 

164,  192,  193,  216,  217,  314,  343 
Clitherall  v.  Ogilvie,  1  Dessau.  Ch. 

257 244,  272,  276 

Clive  V.  Beaumont,  1   De  G.  &  Sm. 

397 92 

Clopton  V.  Martin,  11  Ala.  187. 

318,  332,  345 
Close  V.  Stuyvesant,   132  HI.  607. 

279,  288 
Cloud   V.    Greasley,    125    111.    313. 

10,  162,  168 
Clowes  V.  Higginson,  1  Y.  &  B.  524. 

336,  341 
Clute  V.  Robinson,  2  Johns.  395...  437 
Coale  V.  Barney,  1    Gill   &   Johns. 

324 39 

Coates  V.  Gorlach,  8  Wright,  43. ..  531 
Cocamaugher  v.  Green  (Ky.),  20  S. 

W.  Rep.  542 474 

Cochrane   v.    Justice    Mining  Co., 
(Colo.)    26   P.    780. 

89,  225,  504 
V.  WiUis,  34  Beav.  .359..     79 
Cochran  v.  Ward  (Ind.   App.),   31 

N.  E.  581 171 

Cockv.  Evans,  9  Yerg,  287 555 

Cjckell  V.  Taylor,  15  Beav.  103. ,,  276 
Cockerell  v.  Cholmeley,  1  R.  &  My. 

418 rfl6 

Coddington  v.Goddard,  16   Gray, 

436 354 


TABLK    OF   CASES    CITED. 


PAGi;. 
Codding-ton  v.  Paleologo,    L.    R.    2 

Ex.  193 389 

Coe  V.  Johnson,  93  Ind.  418 164 

V.  N.  J.  Midland  Ry.,  31  N.  .1. 

Eq.    105 207 

Coffee  V.  Emigh,  15  Cole,  184 476 

Coffin  V.  Cooper,  14  Ves.  205..  371,  490 
Coffing-  V.  Taylor,  16  111.  457..  333,  336 
Coffman  v.  Robbins,  8  Oi-eg.  278. . .  12 
Cogerst  V.  Gibson,   33   Beav.    557. 

6,  7,  25,  232 
Coger's  Ex'ors  v.  McGee,   2   Bibb. 

321 321,  324 

Cohn  V.  Mitchell,  115  111.  124 13 

Colcock  V.  Butler,   1    Dessau.    307. 

456,  479 
Cole  V.Cole,  41   Md.   301....    105, 

136,  372,  531 
V.  Gibbons,  3  P. Wms.  293.  384,  514 

V.  Gibson,  1  Ves.  503 362 

V.  Potts,  2  Stockt.  07 . . . .    153, 

155,  159.  174 
V.  White,   1   Bro.    C.    C.    409, 

157,  168,  173 
Coles  V.  Feeney  (N.  J.  Ch.),29  Atl. 

Rep.  172 551 

Coleman  v.  Apjilegarth,  68  Md.  21. 

84,  459 
V.  Beach,  97  N.  Y.  545. . .  230 
V.  Easton   Ct.  Ry.  Co.,  10 

Beav.   1 75 

V.  Upcot,  5  Vin.  Abr.  527. 

94,  109,  238 
Colerick  V.  Hooper,  3  Ind.  316.  547,  549 
Coles  V.  Bristowe,  L.  R.  4  Ch.  3. . .     23 
V.  Browne,  10  Paige,  52G. 

108,  109, 122, 196,  336,  344,  348 
V.  Peck,  96  Ind.  334 ... .  214,  215 
V.  Pilkington,  L.   R.   19  Eq. 

174.. 164,  179 

V.  Sheperd,  30  Jlinu.  440 467 

V.  Sims,  5  De  O.  M.  &  G.  1. .     69 

V.  Trecothi'ck^  9  Ves.  234. 

107,  115,  118,  120,  123, 

155,   1.59,  227,  273,  325,  398 

Colgate  V.  Colgate,  23  N.  J.  Eq.  372.     12 

Collard  V.  Sanipson,  16  Reav.  543..  278 

Collett  V.  Hover,  1  Coll.  227 545 

Collier  v.  Brown,  1  Cox,  428 273 

v.  Jenkins,  Younge,  295.419,  519 
V.  Lanier.  1  Kelly,  23S 332 


PAGE. 

Collier  V.  McBean,  L.  R.  1  Ch.  81. 

278,  283,  284 
Collington  v.  Fletcher,  2  Atk.  155.  198 
Collins  V.   Collins,   26   Beav.    306. 

213,  382 
V.  Karatopsky,  36  Ark. 31 6. 
'  13,     34 

V.  Park  (Ky.),  18  S.  W. 

Rep.  1013 416 

V.  Plumb,  16  Ves.  454.  224,  381 
V.  Plummer,  1  P.  Wms.  104.  231 
V.  Smith,  1  Head,  251....  504 
V.  Stubly,  7  W.  R.  710..,.  535 
V.  Vanderveer,!  Iowa,  573.  435 
Collinson  v.  Patrick,  2  Keen,  123.  80 
Colorado  Land,    etc.  Co.  v.  Adams 

(Colo.  App  ),  37  Pac.  R.  39, 385 

Colson  V.  Thomjison,  2  Wlieat.  336. 

193,  224,  227,  400 
Colt  V   Netterville,  2  P.  Wms.  304.     22 
Colton  V.   Wilson,  3  P.  Wms.  190.  289 
Columbia  Water,  etc.  Co.  v.  Colum- 
bia, 5S.  C.  235 385 

Columbine  v.  Chichester,    2  Phil. 

27 371,  373 

Columbus,   etc.    R.  R.   v.   Watson, 

26  Ind.  50 385 

Colyear  v.   Countess  of  Mulgrave, 

2  Keen,  81 80,  547 

Colyer  v.  Clay,  7  Beav.  188...  203,  J)08 
Combs  V.  Little,  3  Green,  Ch.  310.  206 
v.  Scott  (Wis.),  45  N,  W. 

Rep.  532 479,  540 

Comer  v.  Blankhead,  70  Ala.  493...     45 
Commercial  Ins.  Co.  v.  Union  Ins. 

Co.,  19  How.  318 21 

Commins  v.  Scott,  L.  R.  20  Eq.  11.  126 
Com.  V.  Erie,  etc.  R.  R.,  3  Casey, 

352 76 

V.  Ray,  3  Gray 108 

of  Wash.  Park,  In  re,  56  N. 

Y.  144 44 

Comstock  V.   Comstock,   57  Barb. 

453 353 

Conaway  v.  Sweeney,  23  W.  Va.  643. 

HO,  273,  276 
Conditv.  Blackwell,  22  N.J.  Eq.  481 
Cone  V.  Niagara  Ins.  Co.,  60  N.  Y. 

619 346 

Conger  v.  N.  Y.  W.  S.  cS:  B.  R.  R. 
Co.,  45  Hun,  296 262 


XXX 11 


TABLE   OF  CASES   CITED. 


PAGK. 

Conklin  v.  People's  Bldg.    Assoc. 

41  N.  J.  Eq.  20 67 

Conner  v.    Drake,  1  Ohio  St.    116.  369 

Conolly  V.  Parsons,  3  Ves.  625 356 

Conover  v.  "Wordell,  5  C.  E.  Green, 

266 314 

Conrad  v.  Blumrich,  14  Mich.  109. 

413,  446,  449,  453,  467 
Conway  v.   Kinsworthy,  21  Ark.  9. 

475,  479 
Cook  V.  Clayworth,  18  Ves.  12.  257,  258 
V.   Dawson,   3  De  G.  F.  &  J. 

127 278,  284 

V.  Grant,  16  S  &  R.  198.. . .  8,  232 
V.  Husbands,  11  Md.  492....  319 
V.  Preston,  2  Root,  78.. .  332,  344 
V.  Stafford  (Mich.),  48  N.  W. 

Rep.  785 474 

V.  Vick,  2  How.  882 26 

V.  Waugh,  2  Giff.  201 ... ,  290,  300 

Cooke  V.  Oxley,  3  T.  R.  653 84 

V.  Tombs,  2  Aurst.  420 157 

Cookes   V.    Mascall,    2   Vern.   34. 

98,  204 
Coolbangh   v.    Roemer,   32  Minn. 

445 400,  432 

Cooley  V.  Howe  Mac.  Co.,  53  N.  Y. 

620 548 

Coombes  v.  Mansfield,. 24  L.  J.  Ch. 

513 OS 

Coombs  V.  "Wilkes  (1891),  3  Ch.  77. 

121.  126 
Cooper  V.  Brown,  2  McLean,  495. 

415,  450,  478 
V.    Chittenden   (Nebr.),  50 

N  W.  Rep.  2 41,^ 

V.  Denne,  4  Bro.  C.  C.  80.  279 
V.   Farmers'    Ins.    Co.,    14 

Wright,  299 332 

V.  Monroe,  77  Hun,  1 164 

V.    Pena,      21      Cal.      403. 

52,  234,  237,  383,  397,  479 
V.  Phibbs,    L.  R.  2  H.  L. 

149,  170 320 

V.  Smith,  15  East,  103,  121,  124 
V.  Warrnold,  7  W.  R.  402.  158 

V.  Wells,  Saxton,  10 540 

Co-operative  Society  v.  Hardy,  31 

N.  J.  Eq.  442 489 

Coote   V.  Coote,  1  Sauss.   &  Scin. 
393,... 259 


PAGE. 

Cooth  V.  Jackson,  6  Ves.  12....  135, 

153,  157,  195,  198,  201,  211,  248,  363 
Cope  V.  Parry,  2  J.  &  W.  538.. 545,  547 
Copper   Mining  Co.   v.    Beach,   13 

Beav.  478 406 

Corber  v-  Morgan,  18  Ves.  344 .545 

Corbin  v.  Jackson,  14  Wend.  619.,.   171 

V.  Tracy,  34  Conn.  325 25 

Corbus  V.  Teed,  69  111.  205.  435,  549,  555 
Corcoran  v.  White,  117  111.  118 ... .  90 
Cordes  v.  Miller,  39  Mich.  581 ... .  360 
Cordingley  v.  Cheesebrough,  3  Giff. 

96 428,  512 

Core  V.  Wigner's  Heire,  32  W.   Va. 

277 416 

Corey  v.  Clarke  (Minn.),  56  N.  W. 

Rep.  1063 4l9 

Cork  etc.  Ry.   Co.,  In  re,  L.  R.  4 

Ch.   748 78 

Cornell  v.  Andrews,  30  N.  J.  Eq. 

321 286 

35  N.     J.     Eq.     7. 
279,  281,  283,  284,  286 

36  N.  J.  Eq.  321...  281 
Cornfoot  v.  Fowke,  6  M.  &  W.  358. 

295,  359 
Cornwall  v.  Hawkins,  41  L.  J.  (N. 

S.)  435 32 

Corporation  of  Hythe  v.  East,  L.  R. 

lEq.  620 535 

Corsbie  v.  Free,  Cr.  &  Ph.  64 406 

Corson  v.  Mulvany.  13  Wright,  88. 

235,  236,  265 

Cort  V.  Lassard,  18  Oreg.  221 31 

Cortilyou's  Appeal,  102  Pa.  St.  576.  215 
Cory  V.  Thames,  etc.,  11  W.  R.  589.  536 
Coslake  v.  Till,  1  Russ.  376... .  380. 

456,  458,  465 
Cesser  V.  CoUinge,  3  My.  &  K.  283..  220 
Cossett  V.  Hobbs,  56  111.  231...  130,  334 
Coster  V.  Mayor,  etc.,  43  N.  Y.  399.  548 
V.  Turnor,  1  Russ.  &My.  311.  491 
Costigan  v.  Hastier,  2  Sch.  &  Lef. 

160 259,  262 

Cotheal  v.  Talmadge,  9  N.  Y.  551..     69 

Cotrell  V.  Cotrell,  81  Ind.  87 504 

Cotton  V.  Cotton,  75  Ala.  345 477 

V.  Ward,  3  Mour.  313..  449,  489 
Counter  v.  Maci^herson,  5  Moo.  P. 

C.  83 384,  394,  404,  488 

Courcier  v.  Gr.iham,  2  Ohio,  341. ..  629 


TABLE    OF  CASES   CITED. 


XXXUl 


PAUE. 

Cousine  v.  Wall,  3  Jones  Eq.  43. . .   20G 
Couttv.  Craig-,  2  Hen.  &  Munif.  (318.  345 

Couturier  v.  Hastie,  9  Ex.  102 895 

Cowan  V.  Sapp,  81  Ala.  525..  249. 

25G,  353 
Cowg-ill  V.  Oxmauton,  3  Y.  &  C.  Ex. 

377 490 

■Cowie  V.  RenitVy,  10  Jur.  789 108 

vCowles  V.  Gale,  L.  R.  7  Ch.  12 458 

V.  Whitman,  10  Conn.   121. 

13,  18,  19,  24,     66 
Cowley  V,  Watts,  17  Jur.  172.,.. 89,  221 

Cox  V.  Boyd,  38  .Ala.  42 431 

Cox  V.  Coventon,  31  Beav.  378.  420,  520 

V.  Cox,  26  Gratt.  305 268 

V.  Cox,  2  Casey,  375. 

139,  153,  156,  IGG,  173,  192,  193 
V.  Middleton,  2  Drew.  209. 

217,  290,  300,  307 

Coyle  V.  Davis,  20  Wise.  593 206 

Cozine  v.  Graham,  2  Paige,  178...   199 
Crabill  v.  Marsh,  38   Ohio   St.  831. 

162,  197 
€rabtree  v.  Levings,  53  111.  526. 

433,  444,  449,  477 

Cragg  V.  Holme,  13  Ves.  14    257 

Craig  V.  Johnson,   3   J.    J.    Marsh. 

572 5.54 

V.  Kettredge,  3   Foster,  231. 

344,  348 

V.  Leslie.  3  Wheat.  563 388 

V.  Martin,  3  J.  J.  Marsh.  50.  488 
Craige  v.  Craige,  6  Ired.  Eq.  191..  340 
Crampton  v.  Varna  Ry.  Co.,  L.  R. 

7Ch.  562 67 

Crane  v.  Conklin,  Saxton,  346 257 

V.  De  Camp,  21  N.  J.  E(i.  414. 

55,  244,  400 
V.  Gough,    3   Md.    Ch.    119. 

145,  150 
Cranston  V.  Wheeler,  37  Hun,  63..  519 
Crary  v.  Goodman,  12  N.  Y.  266..   347 

V.  Smith,  2  N.  Y.  60 433 

Crawford  v.  Bertholf,  Saxton,  460. .  389 
V.  Wick,  18  Ohio  St.  190.  174 

Crawshay  v.  Maule,  1  Sw.  513 369 

Crayston  v.  Banes,  1  Eq.  Cas.  Abr. 

19 198 

Creigh  v.  Boggs,    19    W.    Va.    240. 

109,  345,  518 
Creightoii  v.  Sandei-s,  89  111.  .543..   139 


l-AGE. 

Cribbons  v.  Markwood,  13   Gi-att. 

495 271 

Cripps  V.  Jee,  4  Bro.  C.  C.  472 323 

Crittenden  v.  Drury,  4  Wise.  205..  444 
Crocker  v.  Higgins,  7   Conn.    342. 

156,  190,  191,  203 

V.  Young.  Rice   Eq.  30...  273 
Crofton  V.  Ormsby,  2  Sch.  &  Let". . 

602 406.  458,476,  553 

Crompton    v.    Melbourne,    5    Sim. 

853 524 

Cronk  v.  Tnnnble,  66  111.  428. 

159,  162,  190 
Crook  V.  Corp.  of  Leaford,  L.  R.  G 

Ch.  551 117,  143,  149,  179 

Croome  v.  Lediard,   2   My.    &   K. 

251 316 

Crosbie   v.    Tooke,    1     My.    &    K. 

431 407,  549 

Crosby  v.  Davis,  9  Iowa,  98..  546,  552 

Crosier  v.  Acer,  7  Paige,  143 . .  317,  321 

Cross  v.  Sprigg,  6  Ha.  552 99 

V.  Truesdale,  28  Ind.  44 548 

Crossfield  v.  Gould,  9  Ont.  Ap.  Rep. 

218 454,  455 

Crossley  v.  May  cock,  L.  R.  18  Eq. 

180 86,  122 

Crostwaight  v.  Hutchinson,  2  Bibb. 

407 42 

Crouse  v.  Frothingham,  97  N.  Y. 

106 193 

Crow  v.  Rogers,  1  Str.  592 547 

Crowder  v.  Austin,  3  Bing.  3G8 356 

Crowell  v.  Currier,  27  N.  J.  E(i.  152.  549 

v.  Denley,  19  Bradw.  509..  489 

Cruse  V.  Nowell,  25  L.  J.  Ch.  709.  440 

v.  Paine,  L.  R.  4  Ch.  441. ...  23 

Cruttwell  v.  Lye,  17  Ves.  335...  32,  380 
Cubberly  v.  Cubberly,  33  N.  J.  Eq. 

591 21,  549 

39  N.  J.  Eq.  514..  203 
Cubitt   V.  Smith,   10  Jur.    (N.   S.) 

1128 28 

Cud    V.    Rutter,    1    P.    Wms.    570, 

9.  13,  22,  66 
Cuddon   V.   Cai'lwright,   4  Y.  &.  C. 

Ex.  25 252 

V.  Tite,  1  GiflF.  395 500 

Cutl'v.  Dorland,  50  Barb.  438 335 

55  Barb.  81....  .'m,  244 

Cummings  v.  Gill,  6  Ala.  562 179 


XXXIV 


TABLE   OF  CASES   CITED. 


PAGE. 

Cummings  v.  Nut,  "Wright,  713. 171,  179 
Cunningham  v.   Blake,   121  Mass. 

333 285 

V.  Duncan,  4  Wash.  St.  506.  540 
V.  Sharp,  11  Humph.  116. 

400,  421,  425,  518,  521 
V.  Williams,  43  Mo.  App. 

629 109,  121 

Cupper  V.  Harris,  Bnmb.  135 13 

Cuppy  V.  Hixon,  29  Ind.  522 159 

Curlin  v.  Hendricks,  35  Tex.  225. 

79,  273 

Curling  v.  Flight,  6  Hare,  41 219 

Curran  v.  Holyoke  Water  Co.,  116 

Mass.  90 254,  528,  546 

Currier  v.  Howard,  14  Gray.  571...  549 
Curtin  v.  Hammond,  10  Mont.  1 . . .  150 
Cutler  V.  Babcock,  (Wis.)  51  N.  W. 

R.  420 174 

Curtis  V.  Leavitt,  15  N.  Y.  157 . . . .     76 

V.  Sage,  35  111.  22 141 

Custard  v.  Custard,  25  Tex.  49....  322 
Cutsinger  v.  Ballard,  115  Ind.  93...  167 
Cutting  V.  Dana,  25  N.  J.  Eq.  265.  25 
Cutts  V.  Thodey,  13  Sim.  206. 

488,  492,  545,  547 

D. 

Dabney  v.  Kennedy,  7  Grat.  317...     21 

Da  Costa  v.  Davis,  1  B.  &  P.  242...  376 

Dagenham  Dock  Co.,  In  re,  L.  R.  8 

Ch.  1022 465 

Dahoney  v.  Hall,  20  Ind.  264 552 

Dail  V.  Freeman,  92  N.  C.  351 389 

Dailey  v.   Litchfield,   10  Mich.  29. 

69,  551,  553,  555 

Daisz's  Appeal,  128  Pa.  St.  .572....   474 

Dakin  v.  Dakin,  97  Mich.  284.. .....   189 

Baking  v.  Whimper,  26  Beav.  568.  545 

Dalby  v.  Pullen,  3  Sim.  29. 

419,  491,  519 

Dale  V.  Hamilton,  5  Hare,  369. 

143,  152,  155 

V.  Lister,  16  Ves.  7   506 

V.  Madison,  5  Leigh.  410 361 

V.  Roosevelt,  5  Johns.  Ch.  174.  335 
Daly  V.  Smith,  49  How.  Pr.  150.. . .  31 
DalzeU  v.  Crawford,  2  Pa.  L.  J.  17. 

13,  14,  66,  232,  416 
Dana  v.  Bank  of  St.  Paul,  4  Minn. 
385 76 


PAGB. 

Danforth  v.  Laney,  28  Ala.  274. 

164,  174 
V.  Philadelphia,  etc.,  R.  R. 
30  N    J.  Eq.  12. 

27,  28,  374 
Daniel  v.  Adams,  Amb.  495...  114,  374 

V.  Frazer,  40  Miss.  507 53 

V.  Leitch,  13  Gratt.  195 449 

V.  Mitchell,  1   Story,  172. 

290,  304 
Daniels  v.    Davison,   16   Ves.   256. 

215,  418,  424,  510.  519 
Darbey  v.  Whitaker,  4  Drew.  134. 

211,  213,  380,  422,  520 

Darby  V   Darby,  S  Drew.  495 143 

Darlington  v.  Hamilton,  Kay,  558. 

418,  519 
Darnley  (Lord)  v.  Loudon,  etc.  Ry. 

Co.,  3  DeG.  J.  &S.  24...  213,  382,  400 
D'Arras  v.   Keyser,  2  Casey,   249. 

236,  445,  460,  466 
Dartmouth  Coll.   v.   Woodward,   4 

Wheat.  636 76 

Davar  v.  Cardwell,  27  Ind.  478 ... .   437 
Davenport  v.  Bishop,  2  Y.  &  C.  C. 

C.  451 80,  548 

V.  Mason,  15  Mass.  92...  181 
Davey  v.  Barber,  2  Atk.  489. 

399,  496,  497,  500 

Davidson  v.  Little,  10  Harris,  245..  271 

Davies  v.  Cooper,  5  My.  &  Cr.  270.  355 

v.  Fitton,  2  Dr.  &  M.  225....  343 

V.  Otty,  35  Beav.  208 203 

Da\'is  V.  Abraham,  5  W.  R.  465.. ..   355 

V.  Ely,  104  N.  C.  16 349 

V.    Foreman    (1894),     3   Ch. 

654 31 

V.  Havard,  15  S.  &  R.  165...     26 

V.  Henry,  4  W.  Va.  571 553 

V.  Hone,  2  Sch.  &  Lef.  341. 

39,  49,  263,  337,  375,  401 
V.   Marlborough,    Dk.   of,    2 

Sw.  154 269 

V.  Moore,  9  Rich.  215. 

139,  154,  15G,  170 
V.  Parker,  14  Allen,  94...  10,  528 

V,  Robert,  89  Ala.  402 109 

V.  Shepherd,  L.  R.  1  Ch.  410.  334 
V.  Shields,  26  Wend.  341. 

108,  109   110,112,  133,  239 
V.  Stevens,  3  Iowa,  158,  462,  465 


TABLE   OF  CASES   CITED. 


XXXV 


TAGE. 

Davis  V.  Symonds,  1  Cox,  406. 

244,  245,  290 
V.   Terry  (N.  C),   18  S.   E. 

Rep.  947 431 

V.  Townsend,  10  Barb.   347. 

16G,  171 
Davison  v.   Asso.  of  Jei-sey  Co.,   6 

Hun.  470 ....    474 

V.  Davis,  125  U.  S.  90..  478,  479 
V.  Davison,  2  Beasley,  246.  162 
V.  Perrine,  7  C.  E.  Green, 

87 373,  422,  520 

Dawson  V.  McFaddin,  22  Nebr.  131. 

137,  185 
Day  v.   Burnham  (Ky.),   11  S.    W. 

Rep.  807 437 

v.  Cobn,  65  Cal.  508. 

167,  178,  476,  486 

V.  Fynn,  Owen,  133 427,  522 

V.  Hunt,  112  N.  Y.  191...  444,  486 
v.  Luhke,  L.  R.  5  Eq.  336..,.   458 

V.  Newman,  2  Cox,  77 272 

V.  Patterson,  18  Ind.  114 548 

Dean  v.   Anderson,   34  N.   J.   Eq. 

496 ...    10,  189 

V.  Comstock,  32  111.  173 420 

V.  Dean,  1  Stock.  Ch.  425...   199 
V.   Rastron,  1  Aust.   64. 

256,  276,  355 
of  Ely  V.  Stewart,  2  Atk.  44.  267 

Deane  v.  Izard,  1  Vern.  159 181 

De  Beerski  v.  Paige,  36  N   Y.  537..  109 
De  Biel  v.  Thompson,  3  Beav.  469. 

98,  118,  143 
De  Brassac  v.  Martin,  11 W.  R.  1020.  536 
De  Camp  v.  Crane,  4  C.  E.  Green, 

166 488 

V.  Feay,  5  S.   &  R.  323. 
411,  443,  446,  451,  4-33,  466 

Dech's  Appeal,  57  Pa.  St.  467 431 

De  Cordova  v.  Smith,  9  Tex.  129. . .  474 

De  Costar  v.  Jones,  Coop.  729 361 

Deen  v.  Milne,  113  N.  Y.  303...  21,  478 
Deforrest  v.  Bates,  1  Edw.  Ch.  394.  410 

Deggett  V.  Hart,  5  Flor.  215 66 

Deglow's  Ex'r  v.   Meyer  (Ky.),  15 

S.  W.  Rep.  875 432 

De  GrofFv.  American,  etc.  Co.,  21  N. 

Y.  124 76 

De  Houghton  v.  Money,  L.  R.  2  Ch. 
164 361,  .545 


De  Kylu  v.  Watkins,  3  Sandf.  Ch. 

185 10 

De  La  Cuestra  v.    Insurance  Co., 

136  Pa.  St.  62 24 

Dolafiold  V.  Anderson,   7  SukhI.  & 

Mar.  630 271 

Delava/i  v.  Duncan,  49  N.  Y.   485. 

433,  437,  448,  474,  488 
De  Mattos  v.  Gibson,  4  DeG.  &  J. 

276 33.  67,  384 

De  Medina  v.  Norman,  9  M.  &  W. 

820 374 

Demond  v.  Ins.  Co.,  5  R.  I.  130....  322 
Denlar  v.  Ilile  (Ind),  24  N.  E.  170..  166 
Denne  v.  Light,  26  L.  J.  Ch.  4.59...  269 
Denny  v.  Hancock,  L.  R.  6  Ch.  1. 

291,  297,  326,  352,  425,  428,  520 
Denton  v.  McKonzie,  1  Dessau.  Ch. 

289 122 

V.  Stewart,  1  Cox,  258. 

371,  372,  540 
De  Pierres  v.  Thorn,  4  Bosw.  266...  10 
De  Peyster  v.  Hasbrouck,  UN.  Y. 

587 321,  332,  336,  348 

De  Pol  V.  Sohlke,  7  Roberts,  280.. .  32 
Derrett  v.  Bowman,  61  Md.  526....  400 
De  Rivatinoli  v.  Corsetti,  4  Paige, 

270 32,  383 

Derrick  v.  Monette,  73  Ala.  75..  82,  90 
De  Rutte  v.  Muldrow,  16  Cal.  505.  236 
Derry  v.  Peek,  14  Ai>p.  Cas.  (H.  L.) 

337 296 

Despain   v.    Carter,    21    Mo.    331. 

137,  145,  166,  179 
Devenish  v.   Baines,   Prec.   Ch.  3.  205 
V.  Brown,  26  L.  J.  Ch.  23. 

371,  490 
Devin  v.  Eagleson  (Iowa),  44  N.  W. 

Rep.  545.. 168 

Devinney  v.  Corey,  S.  N.  Y.  Sujip. 

289 162 

Devisme  v,  Devisme,  1  Hall  &  Tw. 

418 496,  498 

Devol  v.  McLitosh,  23  Ind.  529  ... .   548 

De  Wolf  v.  Pratt,  42  111.  198 434 

Dhegctoft     V.     London     Ass.     Co. 

Mosoly,  83 66 

Diamond  Match  Co.  v.  Roeber,  106 

N.  Y.  473,  4SG 32,     69 

Diamond  State  Iron  Co-  v.   Todd, 

(Del.)  14  Atk  R.  27 223 


XXXVl 


TABLE   OF  CASES    CITED. 


PAGE 

Dick  V.  Donald,  1  Bli.  (N.  S.)  655.  440 

Dickinson  v.  Any,  25  Ala.  424 531 

V.  Dodds,  L.  R.  2  Ch.  D. 

436 83,  84,     95 

Dickman  v.  Birkhauser,   16  Nebr. 

686 82,  193 

Dictricksen  v.  Cabbui-n,  2  Ph.  52.  384 
Dieter  v.  rallon,  12  N.  Y.  Supp.  33.  223 
Dike  V.  Greene,  4  R.  I.  285. ..  213,  214 

Dill  V   Shahan,  25  Ala.  702 317 

Dilly  V.  Barnard,  8  Gill.  &  Johns. 

170 410 

Diman  v.  Providence  Pi,.  R.,  5  R.  I. 

130 322,  333,  336 

Dimmock  v.  Hallett,  L.  R.  2  Ch.  21.  428 
Ding-ley  v.  Bow,  130  N.  Y.  607 ... .  279 
Dinham  v.  Bradford,  L.  R.   5  Ch. 

519,  382 

Dixon  V.  Olmins,  1  Cox,  414 205 

Doan  V.  Manzey,  33  III.  227.. .  531,  537 
Doar  V.  Gibbes,  1  Bailey  Ch.  371. 

456,  462 
Dobbs  V.  Norcross,  24  N.  J.   Eq. 

327 279,  284,  286,  421 

Dobell  V.  Hutchinson,  3  A.  &  E.  355. 

120,  121,  124 
V.  Stevens,  3  B.  &  C.  623. . .   309 

Dobson  V.  Litton,  5  Coldw.  616 223 

Dock  V.  Hart,  7  W.  &  S.  172..  172, 

189,  196 
Docter  v.   Heilberg-,   65   Wis.   415. 

109,  215,  504 
Dodd  V.  Wakeman,  11  C.  E.  Green, 

484 206 

Dodge  V.   "Wellman,   1   Abb.   Ajjp. 

Dec.  512 12 

Dodson  v.  Hays,  29  W.  Va.  577....  489 
V.  Swan,  2  W.  Va.  511....   360 

Doe  V.  Doe,  37  N.  H.  268 340,  341 

Doe  d.  Gray  v.  Stanion,  1  M.  &  W. 

695 219 

Leyster  v.  Goldwin,  2  Q.  B. 

143 221 

Mann  v.  Walters,  10  B.  &  C. 

626 221 

Dog-g-ett  V.  Emerson,  3  Story,  700.  327 
Doherty  v.  Waterford,  etc.  Ry.  Co., 

13  Ir.  Eq.  R.  538 43 

Dolman  v.  Nokes,  22  Ceav.  402 354 

Doloret  v.  Rothschild,  1  S.  &  S.  590. 

22,  34,  44,  455,  457 


PAGE. 

Domestic  Tel.  Co.  v.  Metropolitan 

Tel.  Co.,  39  N.  J.  Eq.  160 124 

Donellan  v.  Read,  3  B.  &  Ad.  899.  141 

Donelson  v.  Posey,  13  Ala.  752 258 

Donner  v.  Redenbaugh,  61  la.  269. 

375,  402 
Doo  v.   London,   etc.    Ry.    Co.,    1 

Railw.  Cas.  257 43 

Doogood  v.  Rose,  9  C.  B.  130 403 

Dooley  v.  Watson,  1  Gray,  414...  69,  237 
Doolin  V.  Ward,  6  Johns.  112..  358,  362 
Dorin  v.  Harvey,  15  Sim.  49.. .  400, 

474,  482 

Dorris  v.  Sullivan,  90  Cal.  279 434 

Dougan  v.  Blocker,  12  Harris,  28. 

157,  164,  167,  176,  178 
Dougherty  v.  Catlitt  (111.),  21  N.  E. 

Rep.  932 139 

V.  Harsel,  91  Mo.  161, 

167 179,  185 

Douglass  V.  London  &  N.  W.  Ry. 

Co.,  3  K.  &  J.  173..     43 
V.  Spears,  2  Nott.  &  McC. 

207 109 

Doungsworth    v.    Blair,    1     Keen, 

795 80 

Dow  V.  Carter,  1  Speer.  Eq.  414. . .   317 

V.  Whitney,  147  Mass.  1 286 

Dowell  V.  Dew,  1  Y.  &  C.  C.  C.  345 

174,  175,  553 
Dowling  V.   Bitjemann,  2  J.   &  H. 

544 17 

Downer  v.  Church,  44  N.  Y.  647...  507 
Downey  v.  Hotchkiss,  2  Day.  225...  138 
Downing  v.  Mt.  Wash.  Rd.  Co.,  40 

N.  H.  230 76 

V.  Risley,  2  McCarter,  94. 

389,  550,  553 
Downs  V.  Collins,  6  Hare,  418.  218,  369 
Dowson  V.  Solomon,  1  Dr.  &  Sm.  1.  284 

Dragoo  v.  Dragoo,  50  Mich.  573 193 

Drake  v.  Barton,  18  Minn.  462  ....    496 

V.  Collins,  5  How.  253 354 

Draper  v.  Pattina,  2  Speers,  292. . .  108 
Dresel  v.  Jordan,   104   Mass.    407. 

219,  240,  416,  444,  489,  490 

Drew  V.  Clarke,  Cooke,  374 327 

V.  Corp,  9  Ves.  368 418,  519 

Drewe  v.  Hanson,  6  Ves.  675 518 

Drum  V.  Stevens.  94  Ind.  181,  183. 

173,  178 


TABLE   OF  CASES   CITED. 


XXZVU 


PAGE. 

Drummond  v.  Bolton,  Dk.  of,  Say. 

243 377 

Drury  v.  Conner,  6  Harr.  &  J.  288.  16G 

V.  Hook,  1  Vern.  412 362 

Drysdale  v.  Mace,  2  Sm.  &  Gif.  225. 

80G,  352,  439 
Dubois   V.  Baiim,  10  Wnj,'ht,  537. 

474,  47G,  479 
Duchman  v.  Duchman,  49  Mo.  107. 

433,  435 
Ducie  V.  Ford,  8  Mont.  233,  240  ., .   229 

138  U.  S.  587..   165, 

168,  173 
Duddell  V.  Simpson,  L.  R.    2    Ch. 

102 518 

Dudley  v.  Little,  2  Ham.  505 358 

V.  Mallery,  4  Geo.  52 17 

Duff  V.  Fisher,  15  Cal.  375  ..  9,  11,  434 
V.  Hopkins,  33  Fed.  Rep.  G07. 

109,  120,  124,  159,  229 
Duffell  V.  Wilson,  1  Camp.  401  ....  414 
Duffy  V.  O'Donovan,  46  N.  Y.  223. 

434,  466 
Dugan  V.  Colville.  8  Tex.  126. .   137, 

167,  179 
V.  Gittings,  3  Gill.  138..  143, 

163,  166 

Duke  V.  Andrews,  2  Exch.  290.. 90,  91 
V.  Mayor  of  Exon,  2  Freem. 

183 549 

Dukes   V.  Baugh    (Ga),   16   S.    E. 

Rep.  219 474 

Duncan  v.  Duncan  (Ky.),  18  S.  W. 

Rep.  1022 138 

V.  Topham,  8C.  B.  225....  95 

V.  Wickliffe,  4  Scam.  452  . .  554 
Dunckel  v.  Dunckel,  141  N.  Y.  427. 

166,  194 

Duncombe  v.  Mayer,  8  Ves.  320. . .  18 

Duncuft  V.  Albrecht,  12  Sim.  189  ..  22 
Dundas  v.  Dutens,  1  Ves.  196,.  136, 

158,  204 

Dunkhart  v.  Rinehart,  89  N.  C.  354.  21 

Dunlop  V.  Higgins,  1  H.  L.JCas.  381.  95 
Dunn  V.  Flood,  25  Ch.   D.  629,  28 

Ch.  D.  586 253 

V.  Moore,  3    Ired.    Eq.    364. 

138,  183 

Dunphy  v.  Ryan,  116  U.  S.  491....  197 
Dupree   v.   McDonald,    4    Dessau, 

209 322 


Dupree  v.  Thorn jison,  4  Barli.  27i). 

317,  321 
Durant  v.  Bacot,  2  McCart.'r.  411. 

333,  345 
V.  Comegys  (Idaho),  28  Pair. 

Rep.  425 455,  459 

Durell'v.  Pritchard,  L.  R.  1  Ch.  244.  .535 
Durham,  Earl  of,  v.  Legaril,  34  L. 

J.  (N.  S.)  Ch.  589 511 

Dustin  V.  Newcomer,  8  Ohio,  49. . .   532 
Dutch  Ch.  V.  Mott,  7  Paige,  77.  449,  489 

Dutton  V.  Pool,  1  Ventr.  318 548 

Duval  V.  Getting,  3  Gill.  138 187 

V.    Myers,   2   Md.    Ch.  401. 
110,  153,  155,  156,  229, 

233,  237 
Dwight  V.  Pomen^y,   17  Ma.ss.  303. 

137,  196,  324 
Dwyer  v.  Wright  (Pa.),  29  All.  Rep. 

754 435 

Dyas  V.  Cruise,  2  Jon.  &  Lat.  400. 

11.^  243 

Dye  V.  Forbes,  34  Minn.  13 10 

Dyer   v.    Hargrave,    10   Ves.    505. 
297,  300,  305,  306,  420, 

485,  508 

V.  Martin.  4  Scam.  146 199 

Dykers  v.  Townsend,  24  N.  Y.  57..   129 
Dykes  v.  Blake,  4  Bing.  N.  C.  463. 

439,  520 
Dynan  v.  McCuUoch.  46  N.  J.   E.j. 

11 109,  444,  446 

Dyson  v.  Hornby,   4  De  G.   &  Sm. 
481 497 


Eads  V.  Williams,  4  De  G.  M.  &  G. 

674 214,  457.  469,  475,  4SS 

Earl   V.    Haley,    1    McCarter,    332. 

400.  474,  51 S 
Earl  Beauchamp   v.    Winn.    L.   11. 

6H.  L.  234 320 

Early   v.    Garrett,    9  B.  &  C.  92S. 

295.  309 
Eason  v.  Eason,  61  T.'x.  225,  227  . .  182 
East  Anglian   Ry.    Co.  v.    Eiustern 

Co.  Ry.  Co.,  11  C.  B.  775 75 

East   India   Co.    v.    Nuthumba<loo 

Veerasawney   Moodelly,  7   Moo. 

P.  C.  C.  482 I5S.   194 


XXXVUl 


TABLE   OF  CASES   CITED. 


East  Tennessee,  V.  &  G.  R.  Co.  v. 

Davis  (Ala.),  8  So.  Rep.  349, ..   163 
Eastern  Co.  Ry.  Co.  v.   Hawkes,  5 

H.L.Cas.348 75,     78 

Eastman  v.  Plumer,  46  N.  H.  464. 

55,  431 
Easton,  Eldridge  &  Co.  v.  Milling- 
ton  (Cal.),  38  P.  509 126 

Eaton  V.  Lyon,  3  Ves.  690 458 

V.  Whitaker,  18   Conn.   222. 

136,  139,  150,  159,  164 

Eaton's  Case,  Moore,  357 377 

Eckel  V.  Bostwick  (Wis.),  60  N,  W. 

Rep.  784 193 

Eckert   v.  Eckert,  3  Penn.  332. 

140,  153,  157,  166,  167, 

177,  181,  182,  183,  186 
V.  Mace,  3  Penn.  364,  n. 

183,  185 
Eckstein  V.  Downing,  64  N.  H.  248.  7,  24 
Edgar  v.  Boies,  11  S.  &  R.  445... .  390 
Edgerton  v.    Peckham,    11    Paige, 

3,52 411,413,444,  451,  453 

Edichal   Bullion   Co.    v.    Columbia 
Gold  Mining  Co.  (Va.),  13  S.  E. 

Rep.  100 223 

Edingburgh,  etc.,  Ry.  Co.  v.  Philip, 

2  McQueen,  514 411 

Edwards  v.  Burt,  2  De  G.  M,  &  G. 

55 269 

V.  Estelle,  48  Cal.  194....  162 
V.  Fry,  9  Kans.  417..  173,  174 
V.  Gr.  Junction  Ry.  Co.,  1 

My.  &C.  674 265 

V.    McLeay,    Coop.    308. 

256,  290,  353 
V.    Morgan,    100   Pa.    St. 

330 268 

V.  "Warwick  (Countess),  2 

P.  Wms.  176....  80,  548 
Edwards-Wood  v.  Marjoribanks,  1 

Giff.   384 510,  522 

Egans'  Estate,  6  Jr.  Jur.  (N.  S.)  90. 

427,  522 
Egerton  v.  Matthews,  6  East,  307.  109 
Elbert  v.  O'Neil,  102  Pa.  St.  302. ..  250 
Elfe  V.  Gadsden,  2  Rich.  373,.  123,  133 
Ellard  v.  Llandaff  (Lord),  1  Ball  & 

B.   241 256,  355 

Ellicott  V.  Turner,  4  Md.  476 141 

Ellis  V.  Cary,  74  Wis.  176 162 


I'AGK. 

Ellis  V.  Colman,  4  Jur.  (N.  S.)  350. 

371,  373 
V.  Commander,  1  Strobh.  Eq. 

188 17 

V.  Deadman,  4  Bibb.  467. 

122,  123,  133,  135,  227 

V.  Ellis,  1  Dev.  Eq.  345 138 

V.  Ins.  Co.,  50  N.  Y.  402 

V.  Rogers,  29  Ch.  D.  661 219 

Ellsworth  V.  Randall  (Iowa),  42  N. 

W.  Rep.  629 209 

V.  Southern,  etc.    Exten- 
sion  Co.,    31    Minn. 

543 238 

Elmore  v.  Austin,  2  Root,  415 344 

V.  Kingscote,  5  B.  &  C.  583.  210 

Else  V.  Else,  L.  R.  13  Eq.  196 521 

Elworthy  v.  Bird.  2  S.  &  S.  372 . . . .     27 
Ely  V.  Beaumont,  5  S,  &  R.  124  , . , .   445 
V.  McKay,  12  Allen,  323. 

25,  474,  476,  479 
V.  Perrine,  2  N.  J.  Eq.  396 ... .      61 

Emery  v.  Grocock,  6  Mad.  34 286 

V,  Smith,  46  N.  H.  151....    141 
V.'  Wase,  8  Ves.  505. 

373,  508,  525 
Emmel   V.    Hayes,    102   Mo.   186. 

156,  174 
Emmerson  v.  Heelis,  2  Taunt.  38..  117 
Emmerson's  Case,  L.  R.  1  Ch.  433.  23 
Emmert  v.  Stouffer,  64  Md.  544. 

279,  284 
Emmett  v.  Dewhurst,  3  McN.  &  G. 

587 343 

Endicott  v.  Penny,  14  Sm.  &  M.  157.  123 

England  v.  Curling,  8  Beav.  129...  369 

V.  Downs,  2  Beav.  522 ... .    362 

V.  Jackson,  3  Humph.  584.  325 

V.  Rogers,  41  Cal.  420....   434 

Knnis  v.  Waller.  3  Blackf.  472.  ....    123 

Enraght  v.   Fitzgerald,    2  Ir.    Eq. 

Rep.  87 497 

Episcopal  Ch.  of  Macon  v.  Wiley,  3 

Hill  Ch.  584 117 

Eppinger  v.  McGreal,  31  Tex.  147. 

410,  448,  474,  475,  479 
Equitable  Gas-Light  Co.   v.    Balti- 
more Coal-Tar,  etc.,  Co.,  63  Md. 

285 20,  32.  203 

Erie,  etc.,  R.   Co.  v.   Knowles,   117 
Pa.  St.  77 185 


TABLK    OF  CASES   CITED. 


Erriu^'-toii   v.    Ayuusk-y,   2  Bro.   (.'. 

C.  341 28,275,  384 

Krwin   v.    Krwiii,   17  N.  Y.   Supp. 

442 18.') 

V.  Myers,  10  Wi'i--lit,  00. 

4iy,  504,  50.-},  519 
Esdaile  v.   Stephenson.  1  S.  ,&  S. 

122 420,  498,  520 

Eshleman    v.    Henriette   Vineyard 

Co.,  97  Cal.  070 

Esmay  v.  Gorton,  18  111.  483. 

Ill,  199,  200 
Esposite  V.  Bowden,  4  El.  &  Bl.  963.  3G0 
Espy  V.  Ander.son,    2    Harris,  308. 

19.^5,  190 
Estes  V.  Furlong-,  59  111.  298.  12. 109,  459 
Evans  v.  Battle,  19  Ala.  398. 

185,  186,  541 
V.  Edmonds,  13  C.  B.  777...  295 
V.  Gordon,  69  N.  H.  444  ... .  549 
V.  Kingsbury,  2  Rand.  120. 

504,  529,  549 

V.  Miller,  3S  Minn.  245 167 

V.  Prothero,  13  Eng.  Law  & 

Eq.  163 122 

V.  Richardson,  3  Meriv.  409.   365 
V.    Walshe,    2   Sch.    &   Lef. 

519 200 

V.  Wood,  L.  R.  5  E(i.  9 23 

Evants  V.  Strode,  11  Ohio,  480,...   317 
Evergreen  Cemetery  Ass'n  v.  Arm- 
strong, 37  Minn.  259 179 

Everett  v.  Dilley,  39  Kan.  73. 

211,  218,  225 
Ewing  V.  Beauchamp,  6  B.  Mon. 

422     397 

V.  Crouse,  0  Ind.  312 444 

V.  Gordon,  49  N.  H.  444. 

12,  69, 110,  235,  236,  237,  444 
Eyre  v.  Eyre,  4  C.  E.  Green,  102. 

136,  145,  192,  474,  479 

V.  Potter,  15  How.  42 271 

Eyston  v.  Simonds,  1  Y,  &  C.  C.  C. 

608 489 

Eyton  V.  Dicker,  4  Pri.  303 287 


Fagan  v.  Barnes.  14  Flor.  53 545 

Faine  v.  Brown,  2  Ves.  Sen.  306. 

48,  240,  205 
Fairbanks  v.  Dow,  6  N.  II.  266  ... .    432 


XXXI. K 

I'AOK. 


Fairhrother  v.  Shaw,  4  Iowa,  570.. 
Fairchild  v.  Marshall,  42  xMlnii.  14.   283 
Fairfield  v.  Barbour,  51  Mich.  57..   192 
Falke  v.  Gray,  4  Drew,  051. 

14,  15,  01,  254,  257 
Falkner  v.   Eipiitable,   etc.  Soc,  4 

Drew.   352 278 

Fall  V.  Ilazelrigg,  45  Ind.  570. 

137,  107,  434,  436 
Fallon  V.  R.  R.  Co.,  1  Dill.  121. 

24,  28,  385 
Falls  V.  Carpenter,   1   Dev.  &  Bat. 

Eq.  237 479 

V.  Gaither,  9  Port.  005 95 

Fane  v.  Spencer,  2  Mer.  430 219 

Fanning  v.  Dunham,   5  Johns.   Ch. 

122 361 

Farebrothor  v.    Gibson,   1  De  G.  & 

J.   602 290,  300 

Fargo  V.   N.  Y.  &  N.  E.  R.  Co.,  3 

Misc.  R.  (N.  Y.)  205 385 

Farley  v.   Farley,  1   McCord.   Ch. 

506 17 

V.  Palmer,  20  Ohio  St.  223. 

526,  551 
V.  Stokes,   1  Sel.   E(|.  Cas. 

(Pa.),  422 179,  180 

Vaughn,  1 1  Cal.  227 452 

Farm.  L.  &  T.  Co.  v.  Clowes,  3  N.  Y. 

470 76 

V.  Perry,  3  Sandf. 

Ch.339 76 

Farmer  v.  Bates,  83  N.  C.  387....  215 
Fariiham  v.  Clements,  51  Me.  420. .  207 
Farrall  v.  Davenport,  3  Gifl.  303. 

145,  1.50,  173 

Farrer  v.  Nightingal,  2  Esj..  039..   414 

V.  Patton,  20  Mo.  81.  ..137,  145 

Farrisv.  Bennett,  26  Tex.  508....   488 

V.  Hughes  (Va.),   17  S.   E. 

Rep.  518 518 

Farwell  v.  Lowther,  18  111.  252. 

Ill,  120,  126,  135,  226 
V.  Mather,  10  Allen,  322. 

130,  217 
Faulkner's     Adiu'r     v.     Williams, 

(Ky.),  16  S.  W.  Rep.  352 436 

Fawcett,  In  re,  42  Ch.  D.  156 518 

Fechter  v.  Montgomery,  33  Beav. 

22 31 

Feilden  v.  Slater,  L.  R.  7  E<i.  523. .     32 


xl 


TABLE   OF  CASES  CITED. 


Fellows  V.  Gwydyr  (Lord),   1  Sim. 

63... 310,  549 

Fells  V.  Read,  3  Ves.  70 14,     15 

Felton  V.  Smith,  84  Ind.  485.  ..159,  174 
Fenly  v.  Stewart,  5  Sandf.  101 ....  109 
Fennelly  v.  Anderson,  1  Ir.  Ch.  R. 

706 230 

Fenton  v.  Browne,  14  Ves 144,  300 

Fenwick  v.  Bulman,  L.   R.   9  Eq. 

165 545 

V.  Floyd,  1  Harr.  &  Gill. 

172 123 

Feoffees  of  Heriot's  Hosp.  v.  Gib- 
son, 2  Dow.  301 409 

Ferbraclie  v.  Ferbrache,    110  111. 

210 193 

Ferguson  v.  Paschall,  11  Mo.  267...     19 
V.    Staver,     33    Pa.     St. 

411 ,...  130 

V.  Tadman,  1  Sim.   530. 

497,  499 
V.  Wilson,  L.  R.  2  Ch.  77. 

372,  535 

Ferris  v.  Irving-,  28  Cal.  645 223 

Ferry  v.  Chirke,  77  Va.  397 325 

V.  Sampson,  112  N.  Y.  415..  287 
V.  Stephens.  66  N.  Y.  321. . .     79 

Ferussac  v.  Thorn,  1  Barb.  44 330 

Fessler's  Appeal,  25  P.  F.  Smith, 

483 4.59 

Feusier  v.   Sneath,   3  Nev.  120. 

137,  145 
Fewsterv.  Turner,  11  L.J.Ch.  101..   410 

Field  V.  Chipley,  79  Ky.  260 363 

Fife  V.  Clayton,  3  Ves.  546...  330,  342 
Fildes  V.   Hooker,  2  Meriv.  424. 

219,  516 

Filmer  v.  Gatt,  2  Ves.  401 325 

Finch  V.  Fincli,  10  Ohio  St.  501 ... .    158 

V.  Parker,  49  N.  Y.  1 474 

Finucane  v.  Kearney,  1  Freem.  Ch. 

65 159,166,179,196,  203 

Fireman's   Ins.    Co.   v.  Sturg-es,   2 

Cow.  664 76 

Firmstone   v.    De   Camp,   2   C.  E. 

Green,  317 .    332 

First  African,  etc.  Society  v.  Brown, 

147  Mass.  296 286 

First  Baiatist  Ch.  etc.  v.  Bigelow, 

16  Wend.  28 109,133 

Firth  V.  Greenwood,  1  Jur.  (N.  S.) 

866 478 


PAGE. 

Firth  V.  Midland  R'y  Co.,  L.  R.  20 

Eq.  100 30 

Fish  V.  Hubbard,  21  Wend.  652 . . .  228 
V.  Leser,  (59  111.  394 ... .  50,  57, 
61,  2.50,  251,  254,  256,  257, 

267,  276 

V.  Lightner,  44  Mo.  268 60 

Fisher  v.  Bowser,  41  Tex.  222 116 

V.  Budlong,  10  R.  I.  .526. 

353,  354 

V.  Kay,  2  Bibb.  434 540 

V.  Moolick,  13  Wis.  322....    174 

V.  Shaw,  42  Me.  32 09 

V.  Worrall,   5  W.  &  S.   483. 

295.  300 
Fishmongers  Co.   v.   Robertson,   5 

M.  &  G.  131 112 

Fitch  V.  Boyd,  55  111.  307 114, 

244,  467,  474,  475 
Fitzgei-ald  v.  Peck,  4  Litt.  125....  321 
Fitzhugh  V.  Jones,  0  Mumf.  83 ... .      92 

V.  Smith,  62  111.  4S6 549 

Fitzmaurice  v.  Bayley,  38  Eng.  L. 

&  Eq.  136 124,  130,  217 

Fitzpatrick  v.  Beatty,  1  Gilm.  454. .   224 
V.  Borland,  27  Hun,  291. 

244,  262 
V.  Featherstone,  3  Ala. 

40 278 

Fitzsimmons  v.  Allen,  39  111.  440..  166 

Flagg  V.  Mann,  2  Sumner,  487 531 

Flagler  v.  Pleiss,  3  Rawle,  345....   348 
Flaherty  v.   Blake   (N.  J.),  10  Atl. 

Rep.  158 527 

Flanagan  v.  Gt.  West.  R'y  Co.,  L. 

II.  7  E(i.  116 360,  364,  402 

Fleming  v.  Burnham,   100  N.  Y.  1. 

284,  285,  286 

Fletcher  v.  Fletcher,  2  Cox,  99 ... .      27 

4  Ha.  67....      80 

Flickinger  v.  Shaw,  87  Cal.  126. ..   186 

Flight  V.  Barton,  3  My.  &  K.  282. 

220,  308 
V.    Bollund,   4   Rus.s.  298. 

67,  109,  230 
V.  Booth,  1  Bing.  (N.  C), 

377 - 518 

Flint  V.  Branton,  8  Ves.  159.... 28,  384 
V.    Woodin,      9     Hare,     618. 

810,  356,  514 
Flood  V.  Finlay,  3  Ball.  &  B.  9....    341 


TABLE   OF  CASES   CITED. 


zU 


PAGE 

Floyd  V.  Buckland.  2  Freem.    'J(58, 

179,  185 
V.  Storrs,   144  Mass.  5(5 ... .      21 
Fluyder  v.  Cocker,  12  Ves.  25 ... .   497 
Flynn   v.    Van    Kleck     (Iowa),    58 

N.  W.  Rep.  1091 353 

Fogg  V.  Prine,  145  Mass.  513 210 

Foley  V.  Crow,   37  Md.  51 373, 

421,  425,  449,  486,  517, 

520,  521,  540 
V.  McKeown,   4  Leigh,  627. 

426,  522 
Foil's  Appeal,  91  Pa.  St.  434...   24, 

244,  360 

Follmer  v.  Dale,  9  Barr.   83 166 

Footv.  Webb,  59  Barb.  38 223,  226 

Force  v.  Dutcher,    3   C.   E.   Green, 

401 130,  192 

Ford  V.  Finney,  35  Geo.  258. ..  137,  145 
V.  Gibhardt    (Mo.),    215    W. 

818 90 

V.  Herron,  4  Mumf.  316 263 

V.  Jerome,  6  Phila.  6 383 

V.  Peering,  1  Ves.  72 IS 

V.  Steele    (Neb.),   48    N.  W. 

Rep.  271 185 

V.  Stuart,  15  Beav.  493 384 

V.  Williams,  21  How.  287 ... .    129 
Fordyce  v.  Ford,  4  Bro.  C.  C.  494. 

419,  485,  519 
Foreman    v.  Wolf    (Md.),    29   Atl. 

Rep.  837 286 

V.  Stickney,  77  111.  575..   554 

Forrest  v.  Eleves,  4  Ves.  492 457 

Forrester  v.  Flores,  64  Cal.  24. .  159,  164 
Forster  v.  Wintield,  142  N.  Y.  327..  421 
Forsyth  v.  Clark,  3  Wend.  637 ... .  340 
Forteblowv.  Shirley,  2  Sw.  223...  497 
Fort  Smith  v  Brogan,  49  Ark.  306.  327 
Fortune  v.  Watkins,  94  N.  C.  304. 

315,  528 
Forward  v.  Armstead,  12  Ala.  124.  185 

Foss  V.  Haynes,  31  Me.  86 531 

Foster  v.    Deacon,    3   Madd.    394. 

499,  524 
V.  Hale,  3  Ves.  696...   120, 

121,  139,  192 
V.    Maginnis,   89   Cal.   264. 

1.50,  193 
V.  Russell,  12  Ont.  R.  136..  218 
V.  Wheeler,  36  Ch.  D.  605. .   219 


PAQK 

Fothergill  v.  Rowland,  L.  R.  17  Eq. 

132 384 

Fowle  V.  Freeman,  9  Ve.s.  351..S9, 

10;t,  239 
Fowler  v.  Fowler,  4  Di^  G.  &  J.  265. 

333.  346 
'v.  Mai-shail,  29  Kan.  665..  207 
V.  Redican,  52  111.  405.  .215, 

216  226 

V.  Sutherland,  68  Cal.  414. .    474 

Fox  V.  Mackreth,  2  Dick.  689.. 271,  3.53 

V.  Pierce,  50  Mich.   500 193 

Foxcraft  v.  Lester,  2  Vern.  456. 

14.5,  146 
Frame  v.  Dawson,  14  Ves.  386,  140, 

152,  1.53,  157,  159,  161,  172,  176 
V.  Frame,  32  W.  Va.  463. . . 

185,  410,  480 

France  v.  France,  4  Halst.  Ch.  650.  185 

Frank  v.  Basnet,  2  My.  &  K.  618.  524 

V.  Brunneman,  8  W.  Va.  462.     33 

V.  Frank,  1  Cas.  in  Ch.  84. 

245,  248 
Franklin  v.    Brownlow    (Lord),   14 

Ves.  550 407 

V.  Tuckcrman,  68  Iowa, 

572 159 

V.  Tuton,  5  Madd.  469. . .     29 
Franks  v.  Martin,  1  Ed.  309   ..207,  224 

Franz  v.  Orton,  75  111.  100 50S 

509,  531 
Frarey   v.    Wheeler,    4    Oreg.  190. 

374,  526,  529 
Frary  y.  Sterling,  99  Mass.  461 ... .    141 
Eraser  v.  Child,  4  E.  D.  Smith.  153.  206 
V.  McClenaghan,  2  Rich.  E(i. 

79 17 

V.  Wood,  8  Beav.  339 491 

Fi-azer  v.  McPherson,  3  Dessau.  393.  114 
Frederick  V.  Coxwell,  3  Y.  &  J.  514. 

371,  373,  375,  525 
Freeland  v.  Pearson,    L.    R.   7  Kq. 

246 417 

Freelove  v.  Cole,  41  Barb.  318....    360 
Freeman  v.  Baker,  5  B.  &  Ad.  797.  295 

V.  Cook,  2  Exch.  654 97 

V.  Fairlie,  3  Mer.  30 18 

V.  Freeman,  43  N.  Y.  34. 

136,  167,  168,  186 
Freer  v.  Hesse,  4  De  G.  M.  &  G.  495. 

278.  287 


xlii 


TABLE    OF  CASES    CITED. 


PAGE. 

Freetley  V.  Barnhart,  1  P.  F.  Smith, 

265 53,  281 

Freme  v.  Wright,  4  Mad.  3(54 221 

French   v.    Macale,   2  Dr.  &  War. 

269 69 

Frey  v.  Boylan,  23  N.  J.  Eq.  90. . .  12 
Freize  v.  Glenn,  2  Md.  Ch.  861 ... .  159 
Friend  v.  Lamb.  152  Pa.  St.  529...  251 
Fripp  V.  Fripp,  Rice  Eq.  84..  .273,  277 
Frisby  V.  Parkhurst,  29Md.  58...  268 
Frith  V.  Greenwood,  1  Jur.  (N.  S.) 

806 113 

V.  Lawrence,  1  Paig-e,  434.  84,     94 
V.  Midland  R'y  Co.,  L.  R.  20 

Eq.   100 213,  373 

Frixen  v.  Castro,  58  Cal.  442 400 

Frost  V.  Moulton,  21  Beav.  596.  124,  207 
Frue  V.  Houghton,  6  Colo.  318...  24,  238 
Frye  v.  Shepler,  7  Barr.  91.  ..139, 

153.  169,  170,  192 
Fryer  v.  Rockefeller,  63  N.  Y.  268.  286 
Fugate   V.    Hansford,    8  Litt.  262. 

135,  215 
Fuller   V.    Abrahams,    3   Brod.    & 

Bing.   116 .356 

V.  Cy.  Com.  15  Pick.  81 ... .    171 

V.  Hovey,  2  Allen,  324 479 

V.   Hubbard,   6  Cow.   13. 

432,  437 
V.  Plaintield  School,  6  Conn. 

532 , 76 

V.  Williams,  7  Cow.  53 ... .   432 
V.  Wilson,  3  Q.  B.  58..  296,  359 
Fuller,  etc.  Manuf.  Co.  v.  Bartlett, 

68  Wis.  74 25 

Fullerton  v.  McCurdy,  4  Lans.  132. 

372,  531,  553 
Fulton   V.    Jansen,   99   Cal.    567. 

159,  169 
Furguson  v.  Paschall,  11  Mo.  267. 

13,  24,     66 
Furman  v.  Clark,  3  Stockt.  306. ..      21 

Fui-nival  v.  Crew,  3  Atk.  83 10 

Fursakcr  v.  Robinson,  Prec.  in  Ch. 
475  80 

G. 

Gaff  V.  Jones,  70  Tex.  572 314 

Oage  V.  Newmarket  R'y  Co.,  18  Q. 
B.  457 411 


PAGE. 

Gaines   ^•.    Molen,    41    Ark.  232. 

371,  372 
Galbraith  v.  Galbraith,  5  Kans.  402. 

184,  185 
Galbreath   v.    Galbeath,    5  Watts, 

146 164,  167,  170 

Gale  V.  Ar(-lu'r,  42  Barb.  320..  434,  458 
V.  Lindo.  1  Vern.  475 ... .  97,  262 

V.  Nixon,  6  Cow.  445 109 

Gallagher  v.  Mason,  6  Cow.  346.. .   296 
Gallegher  v.  Gallegher,  31  W.  Va. 

9,  13 159,  170,  182,  193 

GaUoway  v.  Galloway,  104  111.  275. .     82 

V.  Garland,  104  111.  275..  186 

GaU  V.  Gall,  19  N.  Y.  Supp.  332..   193 

Galton  V.  Emuss,  1  Coll.  243 551 

Gamble  v.  Wilson  (Nebr.),  50  N.W. 

Rep.  3 223 

Gangwer  v.  Fry,   17  Pa    St.    491. 

159,  192 
Gannett  v.  Albree,  103  Mass.  372..  430 
Gardner,  Ex  parte,  4  Y.  &  C.  Ex. 

503 487,  492 

Gariss  v.  Gariss,  1  C.  E.  Green,  79. 

479.  480 
Garner  v.  Stubblefield,  5  Tex.  561. 

159,  199 
Garnett  v.  Macon,  6  Coll.  309. 

261,  263,  273,  417,  479 
Garnsey  v.  Rogers,  47  N.  Y.  233..  549 
Garrard  v.  Grinling,   2  Sw.   244. 

336,  341 
Garrett  v.  Banstead,  etc.  R'y  Co., 
4  De  G.  J.   &  S.   462. 

66,  384 
V.    Eesborough,    2    Dr.    & 

Walsh,  441  492 

V.    Lynch,    45    Ala.    204. 

422,  449,  486 
Gartside  v.  Ishervvood,  1  Bro.  C.  C. 

558 250 

Garwood  v.    Eldredge's   Adm'r,   1 

Green  Ch.  145 317 

Gaskarth   v.    Lowther    (Lord),    12 

Ves.107 86 

Gaslight,  etc.   Co.   v.  City  of  New 

Albany  (Ind.),  39  N.  E.  462....   124 
Gasque  v.  Small,   9  Strob.  Eq.  72. 

251,  272,  276 
Gaston  v.  Frankum,  2  De  G.  &  Sm. 

561 120 


TABLE    OF   CASES    CITED. 


xliii 


PACK. 

V.  Plum,  14  Conn.  344 549 

Gates  V.  Gamble,  53  Mich.  181 ... .    124 

V.  Green,  4  Paig-e,  355 308 

Gath  V.  Lees,  3  Hurlst  &  Colt,  558. .  390 
Gatwell  V.  Stafford,  12  Neb.  545. 

10,  11,  109 

Gaven  v.  Hageii,  15  Cal.  208 434 

Gazeley  v.  Price,  IG  Johns.  2G7 . . . .  437 
Geddes's  Appeal,  80  Pa.  St.  442. ..  353 
Gedye   v.    Montrose    (Dk    of),   26 

Beav.  45 4G2,  470 

Gee  V.  Pearce,  2  De  G.  &  Sm.  325. 

481,  48() 
Geifjer  v.  Green,  4  Gill.  47G..   110, 

229,  237 
Gelston  v.  Sigmund,  27  Md.  334. 

10,  223 
Gentry  v.    Gentry   (Va.),  12  S.  E. 

Rep.  96G 553 

V.  Rogers,   40  Ala.   442. 

474,  479 
George  v.  Conbaim,  38  Minn.  338. .  223 
German  v.  Machin,  6  Paige,  289. 

139,  15G,  1G3,  1G5,  173,  192,  229,  237 
Gerrard  v.  O'Reilly,  3  Dr.  &  War. 

414 69 

Gervais  v.  Edwards,  2  Dr.  &  W.  80. 

369,  384,  402 
Getchell  v.  Jewett,  14  Greenl.  350. 

45,  109,  237,  448 
Gibbins  v.  Nt.  East,  etc.  Asylum, 

11  Beav.  1 89,     91 

Gibbons  V.  Caunt,  4  Ves.  849 316 

V.  Hoag,  95  111.  45...   477,  478 
Gibbs  V.  Blackwell,  37  111.  191 ... ,    555 
V.  Champion,  3  Ohio,  335. 

304,  312,  448,  540 
V.  Harding,  L.  R.  5  Ch.  336.     27 
Gibson  v.  D'Este.   2  Y.  &  C.  C.  C. 

542 290,  292,  307 

353,  439 
V.  Goldsmid,  5  De  G.  M.  & 

G.  757 402 

V.  Holland,  L.  R.  1  C.  P.  1..   122 

V.  Ingo,  G  Ha.  112 18 

V.  Patterson,  1  Atk.  12....   481 
V.  "Watts,    1   McCord.  V.q. 

490 314 

Gilbert  v.  Gilbert,  9  Barb.  534  ... .  321 
V.  Peleter,  38  Barb.  517...  504 
V.  Sykes,  16  East,  150 361 


I'AGK. 

Gilbert  v.  The    Trustees,     1    Bo.a.s. 

ISO 145,   1.50 

Gilday   v.    Wat.son,   2  Serg.  &  R. 

407 IGG 

Giltillan  v.  Hender.son,  2  CI.  &  Fin. 

1  ...., 380 

Gill  V.  iricknell,  2  Cush.  355 123 

V.  Newell,  13  Minn.  462 433 

V.  Watts,  59  Md.  492 286 

Gillespie  V.  Moon,  2  Johns.  Ch.  596. 

319,  333,  336,  344 
Gilliatt  V.  (Jilliatt,  L.  R.  9  Eq.   60. 

61,  357 
Gillis  V.  Hall.  2  Brews.  342.  32,  33,  69 
Gilmore  v.  Johnston,  14  Ga.  683...   145 

Gilroy  v.  Alls,  22  Iowa,  174 337 

Givens  V.  Calder,  2  Dessau.  Ch.  171. 

158,  1.59,  168 

Glasier  v.  RoHs,  42  Ch.  D   436 296 

Glass   V.    Ilielbert,    102    Mass.    25. 
138,  147,  150,  159,  164,  167,  196, 

197,  203,  344,  349 
Glasscock  v.  Nelson,  26  Tex.  150. 

474,  479 
Glassell  v.  Thomas.  3  Leigh.  113  ..  529 
Glaze  V.  Drayton,  1  Dessau.  109. ..  42 
Glen  V.  Hope  Ins.  Co.  56  N.Y.  379.  548 
Glengal  (Lord)  v.  Barnard,  1  Keen, 

788 117,  118,  124,  157,  207 

Gloag  and  Miller's  Contract.  /?i  re, 

23  Ch.  D.  320 219 

Gloucester,  etc.,  Co.  v.  Russia  Ce- 
ment Co.,  154  Mass.  92 20 

Goddard  V.  Donaha,  42  Kan.  7.')4..   1.59 
Goddin  V.  Vaughn,  14  Gratt.  102..   437 

Godsal  V.  Webb,  2  Keen.  99 80 

Godwin    v.    Collins,    4  Houst.  28. 

55,  255 
Gold  V.  Sun  Ins.  Co.,  73  Cal.  216..  21 
Goldicutt   V.  Townsend,    28   Beav. 

445,  100 
Goldsmith  v.  GuiUl,  10  Allen,  239. 

455,  456,  462,  479 
Goldthait  v.  Lynch  (Utah),  33  Pac. 

Rep.  699 431 

Good  v.  Herr,  7  W.  &  S.  253 317 

Goodale  v.  Hill,  42  Conn.  311 88 

V.  West,  5  Cal.  339 434 

GoodeU  V.  Field,  15  Yt.  448 ... .  314,  317 
Goodhue  V.  Barnwell,  Rice,  Eij.  198. 

152.  171 


xliv 


TABLE   OF  CASES   CITED. 


PAGE. 

Gooding-  v.  McAllister,  9  How.  Pr. 
123 344 

Goodkind  v.  Bartlett  (111.),  38  N.  E. 

Rep.  1045 41!) 

Goodlett  V.  Hansen,  66  Ala.  151. 

82,  145,  201,  219 
Goodman  v.  Griffiths,  26  L.   J.  Ex. 

145 121,  124,  210 

Good\vin  v.  Collins,  3  Del.  Ch.  189.     55 
V.  Fielding-,  4  De  G.  M.  & 

G.  90 253,  553 

V.  Lyon,  4  Port.  297..  183, 

193,  224 
Goodwin  Co.'s  Appeal,  117  Pa.   St. 

514 19,     24 

Gordon  v.  Calvert,  2  Sim.  253 236 

V.    Hertford,   2   Mad.  106. 

337,  341 
V.  Mahony,  13  Ir.  Eq.  404.  469 
V.  Sims,  2  McCord  Ch.  151. 

lis,  123 
V.  Trevelyan,  1  Pri.  64 . . . .    217 
Gore's  Estate,  3  Ir.   Eq.  Rep.  260. 

427,  522 

Gorham  v.  Dodge,  122  111.  528 162 

Goring  v.  Nash,  3  Atk.  186 548 

Gorton  v.  Smart,  1  S.  &  S.  66 430 

GosbeU  V.  Archer,  2  A.  &  E.  500. 

108,  117,  121 

Gosden  v.  Tucker,  6  Mumf.  1 163 

Gottschalk  v.  Stein,  69  Md.  51 25 

Gotthelf  V.  Stranahan,   138   N.  Y. 

345 267 

Goucher  v.    Martin,  9  Watts,  106. 

168,  170,  325 
Gough  V.  Bench,  6  Ont.  R.  699  ....   277 
V.    Crane,    3   Md.    Ch.    119. 

21,  40,  142,  154,  156,  187 
Gould  V.  Elgin  City  Bkg.  Co.  (111.), 

26  N.  E.  497 189 

V.  Kemp,  2  My.  &  K.  308. ..   258 

V.  Womack,  2  Ala.  83 42 

Gourlay   v.   Somerset,   Dk.    of,   19 

Ves.  429 213,  214 

Govemeur  v.  Titus,  1  Edw.  Ch.  477. 

344,  348 
Gower  v.  Sterner,  2  Whart.  75.  344,  348 
Grace    v.    Denison,    114    Mass.    16. 

130,  211,  218 
Gradle  v.  Warner  (111.),  29   N.  E. 
1118 Ill,  402 


PAGE. 

Graft  V.  Loucks,  138  Pa.  St.  453. ..   166 
Graham  v.  Call,  5  Mumf.  396.. 213,  226 
V.  Hendren,  5  Mumf.  185. .   529 
V.    Oliver,    3    Beav.    124. 

505,  506,  514 
v.  Pancoast,   6  Casey,  89. 

258,  276 
Gram   v.    Stebbins,    7   Paige,   124. 

13,  24,     66 
Grant   v.    Beronio    (Cal.),    32  Pac. 

Rep.  556 520 

V.  Craigmile,  1  Bibb.  203. . .   152 

v.  Grant,  63  Conn.  530 162 

V.  Munt,  Coop.  173 509 

V.  Ramsey,  7  Ohio  St.  157. 

137,  142 
Grape  Creek  Coal  Co.  v.  Spellman, 

39  111.  App.  630 385 

Gratz  V.  Gratz,  4  Rawle,  411..  158,  168 
Graves   v.   Goldthwait,   153   Mass. 

268 156 

V.  Key  City  Gas  Co.  (Iowa), 

50N.  W.  Rep.  283...   223 

Gray  v.  Cockeril,  2  Atk,  114 18 

V.  Dougherty,    25    Cal.    266. 

346,  432,  433,  434 

V.  Smith,  43  Ch.  D.  208 89 

V.  Suspension  Car  Truck  Co., 

127  111.  187 467 

v.  Woods,  4  Blackf.  432 333 

Graybill  v.  Braugh  (Va.),  17  S.  E. 

Rep.  558 527 

Gt.  North.  Ry.  Co.  v.  Manchester, 
etc.,  Ry.  Co.,  5  De  G.  &  Sm.  138 

224,  384 

Great  Northern  Ry.  Co.  and  San- 
derson,   In  re,   25    Ch.    D.   788. 

253,  263,  265 
Gt.  West.  Ry.  Co.  v.  Birmingham, 
etc.  Ry.  Co., 
2Phila.  597.  371 
V.  Cripps  ,     5 

Hare,     91.  317 
Greaves  \.  Gamble,  1  Pa.  Leg.  Gaz. 

Rep.  1 389,  397,  513 

V.  Wilson,  4  Jur.   (N.   S.) 

271 439 

Green  v.  Ball,  4  Bush.  586 206 

V.  Begole,  70  Mich.  602 193 

V.  Colilland,  10  Cal.  317. 

434,  437,  474 


TABLE    OF  CASES    CITEt). 


xlv 


I'/VGE. 

Gi-eeu  V.  Driimmoiul,  31  Mil.  71 541 

V.  Finin.  35  Conn.  178..   107,  47*5 

V.  Green,  0  Gratt.  330 258 

V.  Groves,  109  Ind.  r)10.  173,  197 
V.  Jones,  7G  Me.  5(53...   16(5,  201 

V.  Low,  22  Beav.  62.5 402 

V.  Pulsfoi'd,  2  Beav.  71 28S 

V.  Richards,  23  N.  J.  Eq.  32.  12 
V.  Smith,  1  Atk.  573.  371,  385,  388 
V.    Thompson,    2  Ired.    Eq. 

365 271 

Greenawalt  v.  Este,  40  Kan.  418. . .      90 
Greenaway  v.  Adams,  12  Ves.  401. 

371,  372,  525,  540 
Gi-eene  v.  West  Cheshire  R'y  Co., 

L.  R.  13  Eq.  44 29,     30 

Greenhalgli  v.  Manchester,  etc.  R'y 

Co.,  9  Sim.  264 375 

Greenlee  v.  Greenlee,  22  Pa  St. 

225 136,14.5,174,  192 

Greenlees  v.  Roche  (Kan.),  29  Pac. 

R.  590 168 

Greenswalt  v.  Horner,  6  Serj^-.  &  R. 

71 160 

Greenup  v.  Strong,  1  Bibb.  590.. ..  435 
Greenwood  v.  Ligon,  10  Sm.  &  Mar. 

615 437 

Gregg  v.  Hamilton,  12  Kans.  333. 

137,  167,  372,  531 
V.  Landes,  21  N.  J.  Eq.  494.     33 

V.  Wells,  10  A.  &  E.  90 97 

Gregory  v.  Ingwersen,  32  N.  J.  Eq. 

199  30 

V.  Mighill,  18  Ves.  328. 
164,  165, 166, 168, 169, 

174,  195 
V.  Perkins,  40  Iowa,  82. . .  422 
V.  Wilson,  9  Hare,  683. 

370,  429,  431,  432 

Grenningham  v.  Ewer,  Cro.   Eliz. 

396 377,  378 

Grey  v.  Hesketh.  Ambl.  268 373 

V.  Tubbs,  43  Cal.  359. 

452,  453,  4.54,  462,  466 

Grier  V.  Rhyne,  69  N.  C.  347 12 

Griflet  v.  WiUmau  (Mo.),  21   S.  W. 

Rep.  459 286 

Griffin  v.    Cunningham,    19    Gratt. 

571 398,  417,  422,  479 

v.  GHffin,  1  Sch.  &  Lef. .. . .   352 
V.  Nanson,  4  Ves.  344 80 


I'AOE. 

(irimth  v.  Abbott,  56  Vt.  35(5 104 

v.  Frederick  Co.  Bk.,  (5  (iiil. 

&  .lohn.  424 53,  547 

v.  Spratley,  1  Cox,  383.  271,  273 
Griffiths  V.  Robins,  3  Ma(hl.  191...  364 
Grigg  V.  Landis,  21  N.  J.  Erj.  494. 

402,  411,  449,  486,  488 
Griggsby  V.  Osborn,  82  Va.  371. 

80,  186 
Grinniicr  v.  Carlton,  93  Cal.  189...   383 

Griz/le  v.  Gaddis,  75  Ga.  350 186 

Gross  v.  Leber,  11  Wright,  520....  320 
Grove  v.  Bastard,  2  Phil.  619.  288,  496 
Groves  v.  Groves,  3  Y.  &  J.  163. ..  79 
Grundy  v.  Ford's  Ex'rs,   Litt.  Sel. 

Cas.  129 415,450,  490 

Gudgell  V.  Kitterman,  108  111.  50..  389 

Guedice  v.  Boots,  42  Cal.  452 347 

Guernsey  v.  Am.  Ins.  Co.,  17  Minn. 

104 346 

(juerrant    v.    Fowler,    1     Hen.    & 

Mumf.  4    10 

Guest  v.  Homfray,  5  Ves.  818. 

400,  414,  474,  475,  482,  484,  492,  517 
Gulick  v.  Ward,  5  Halstead,  87...  358 
Gump's   Appeal,   15   P.    F.  Smith, 

476 332 

(iunby  V.  Sluter,  64  Md.  237 290 

Gunter  v.  Halsey,  Ambl.  586.  156,  198 
Gupton  v.  Gupton,  47  Mo.  37. 

268,  372,  537,  540 

Gumel  v.  Mason,  4  Call.  309 520 

Guthrie  v.  Andei-son,  47  Kan.  383. 

108,  159 
Guynett  v.  Mantel,  4  Duer,  86.  417,  519 
Gwynn  v.  Lethbridge,  14  Ves.  585. 

330,  340,  342 


H. 

Haas  V.  Myers,  111  111.  421 95 

Haberda.shers  Co.  v.  Isaac,  3  Jur. 

(N.S.)611 251 

Ilackett  V.  Huson,  3  Wend.  250.. ..  432 
Haden  v.  Farmers'  Fire  Ass'n,  78 

Va.  70 21 

Hadtiehi  v.  Skelton,  69  Wis.  460. ..  114 
Haffey  v.  L>-nch  (N.  V.),  38  N.  E. 

Rep.  298 371 

Haffner  v.  Dickson,  2  Har.  &  J.  40.  475 
Hagar  v.  Hagar,  71  Mo.  610 80 


xlvi 


TABLE   OF  CASES   CITED. 


PAGE. 

Hagerman  v.  Bates  (Colo.),  38  Pac. 

Rep.  1100 :.   479 

Hahn  v.    Concordia  Soc,   42   Md. 

460 33,     (30 

Haigh  V.  Kaye,  L.  R.  7  Ch.  4G9. 

105,  147,  202 
Haight  V.  Badgeley,  15  Barb.  501.  383 
Haines  v.  Haines,  6  Md.  435 . .  166, 

181,  185,  277 
V.  Spanoyle,  17  Nebr.  637. 

.       164,  170,  193 

Haire  v.  Baker,  5  N.  Y.  357 347 

Hairston  v.  Jandon,  42  Miss.  380...  138 
Hale  V.  Bryant,  109  111.  34....    254,  325 

V.  Darter,  5  Humph.  79 559 

V.  Hale  (Va.),  19  S.  E.   Rep. 

739 153,  268 

V.    Wilkinson,   21    Gratt.    75. 
52,  65,  246,  261,  273,  275, 

398,  479 
Hales  V.  Van  Berchem,  2  Vern.  618.  159 
Halfpenny  v.  Ballett,  2  Vern.  373..  98 
Hall  V.  Betty,  4  Man.  &  Gr.  410. ..   219 

V.  Center,  40  Cal.  63 236 

V.  Clagett,  2Md.Ch.l52..  333,  345 
V.  Delaplain,  5  Wise.  206..  412, 

448,  453,  466,  540 
V.  Hall,  12  Beav.  414 90 

1  Gill.  383 136,  199 

2  McCord  Ch.    274.  153 
V.  Hardy,  3P.  Wras.  187..   26,  374 

V.  Joiner,  1  Rich.   186 21,  66 

V.  Peoria   &   E.   R.  Co.  (111.), 

32  N.  E.  Rep.  598.  ..167,  476 

V.  Reed,  2  Barb.  Ch.  500 317 

V.  Smith,  14  Ves.  426 485 

V.  Thompson,  1  Sm.  &  M.  443.  304 

V.  Warren,  9  Ves.  608....    11,  214 
V.  Whittier,  10  R.  I.  530.  136, 

433,  435 
Hallett  V.   Middleton,   1  Russ.  243. 

371,  378 
Halls  V.  Thompson.   1   Sm.   &  Mar. 

443 353 

Halok  V.  Greensweig,  2  Pa.  St.  295,  436 
Halsey  v.  Grant,  13  Ves.  77..  414, 

447,  515,  518,  520 
V.  Peters'  Exec.   79  Va.  60. 

80,  185 
Ham  V.  Goodrich,  33  N.  H.  32..  150, 

153,  156,  159,  166,  173 


PAGE 

Ham  V.  .Johnson  (Minn.),    56  N.  W. 

Rep.,  504 223 

Hamblen  V.  Folts,  70  Tex.  132....    389 
Hamblin  v.  Dinneford,  2  Edw.  Ch. 

531 6,  32,  382 

Hamerv.  Sharp,  L.  R.    lOEq.  108..    113 
Hamilton  v.  l>uckm;uster,  L.  R.    3 

E(i.  323 282 

V.    Dunsford,    6    Ir.    Ch. 

Rep.   412 384 

V.  Grant,  3  Dow.  33.  231, 

267,  270 
V.  Hamilton,  59  Mo.  232.  540 
2  Rich.  Eq. 

355 358 

V.  Harvey,  121  111.  469..  215 
V.  Hector,  L.  R.  6  Ch.  701.  33 
V.  Jones,  3  Gill.  &  J.  127. 

136,    145,  154,  180,  181 
V.  Lycoming  Ins.  Co.,  5 

Barr.   339 95 

(Dk.     of)    V.    Mohun,     2 

Vern.  652..  362 

V.  Rook,  62  111.  139 12 

Hamlin  v.  Wistar,   31  Minn.  418. ..     86 
Hammer   v.    McEldowney,  46   Pa. 

St.  334 223,  228 

Hammersley  v.  De  Biel,    12  CI.  & 

Fin.  62 96,  98, 136,  143.  187, 

223,  228 
Hammond  v.  Messenger,  9  Sim.  327.  66 
Hampton  v.  Moorhead,  62  Iowa,  91.  114 
Hanbury  v.  Litchfield,  2  My.  &  K. 

629 506 

Hanchett  v.  McQueen,  32  Mich.  22.  555 
Hancock   v.    Carlton,    6   Gray,   39. 

412,  453 
V.  Hancock,  2  Vern.  605.  405 

Handy  v.  Wilson,  75  Ga.  841 546 

Hank  v.  McComas,  98  Ind.  460 ... .    171 
Hanly  v.  Watterson   (W.    Va.),    19 

S.  E.   Rep.  536 460 

Hannav.  Phillips,  1  Grant  (Pa.)  254. 
Hannon  v.  Hounihan,  85  Va.  429..   158 
Hanson  v.  Barnes,  8  Gill.  &  Johns. 

358 123 

V.  Edgerly,  29  N.  H.  343..  353 
Hapgood  V.    Rosenstock,   23  Fed. 

Rep.  86 25 

Harbers   v.  Gadsden,  6  Rich.  Eq. 
284 504 


TABLt:    OF  CASES    VlThD. 


XlVU 


I'AGK. 

Hardeman  v.  Burge,   10  Yerg.  203.  371 

Harden  v.  Hays,  9  Barr.  151 183 

Harder  v.  Harder,  2  Sandf.  Ch.  17.  nil 
Hardesty   v.    Richai'dson,   44    Md. 

G17.... 192,  223 

Harding  v.  rribbs,  125  HI.  85 450 

V.    Metropolitan   K'y  Co., 

L.  R.  7  Ch.  154...-  43,  220 
V.  Parshall,  50  HI,  219...   504 

Hare  v.  Burges,  4  K.  &  J.  45 406 

V.  Shearswood,   3  Bro.   C.  C 

168 323 

Harford  v.  Furrier,  1  Mad.  538 ... .  302 
Harkinaon's  Appeal,  78  Pa.  St.  196.  33 
Harnett   v.    Baker,   L.   R.   20    Eq. 

50 296,  306,  334,  521 

V.  Yielding,  2  Sch.  &  Lef. 
549..  9,  11,  130,  139, 

22.-^,  242,  251,  508 
Harrington  v.  Harrington,  2  How. 

701 333 

V.  "Wheeler,  4  Ves.  686. 

400,  474,  475,  478,  482 
Harris  V.    Columbiana  Ins.   Co.,  18 

Ohio,  116 345 

V.  Hillegrass,  66  Cal.  79...  474 
V.  Horwell,  Gilb.  Eq.  11...  205 
V.     Kemble,     1     Sim.     111. 

290,  292,  300,  309,  310 
V.  Knickerbacker,  5  Wend. 

638 153,  156,  166, 

168,  169,  198,  199,  201,  340 
V.  Loyd,  5  M.  &  W.  432 ... .  323 
V.  North  Devon  R'y  Co.,  20 

Beav.  384 23 

V.  Patmore,  74  Ga.  273 10 

V.  Pepperell,  L.  R.  5  Eq.  1..  338 

V.  Reece,  5  Gil.  212 345 

V.  Tyson,  12  Harris,  347 271 

Harrisburg  Base-Ball  Club  v.  Ath- 
letic Assn.  8  Pa.  C.  C.  R.  337 229 

Harrison  v.  Deramus,  33  Ala.  463. .   540 
V.  Gardener,  2  Madd.  198. 

32,  45,  343 
V.  Harrison,  1  Md.  Ch.  331. .  179 
V.    Howard,    1    Ired.     Eq. 

407 314,  345 

V.  Polar  Star  Lodge,  116  HI. 

279 179 

V.  Southcote,  1  Atk.  528 18 

V.  Town,  17  Mo.  237...  273,  276 


Har.sha  V.  Reiil,  45  N.  Y.  415 641 

Hart  V.  Hart,  18  Ch.  D.  670... 218.  317 
V.  Herwig.  L.  R.  8  Ch.  860....  68 
V.  McClellan.    41   Ala.    251. 

15.">,  150,  435 
Hartford  v.  Purrior.  1  MatUl.  532..  490 
llarttbrcl  Ins.  Co.  v.  Harnier,  2  Ohio 

St.  452,  4713.  .')3 

Hartley  v.  Rieo.  10  East,  22 362 

V.  Smith,    Buck's    Bank'y 

Cas.  368 288 

Hartman  v.    Streitz,  17  Nebr.  557. 

167,  389 

Hartwell  v.  Hartwell,  4  Ves.  811  ..   362 

V.  Young,  67  Hun,  472. ..    142 

Ilarvie  v.  Banks,  1  Rand.  408 410 

Harwood  v.  Bland,  1  Flan.   &  Kel 

540 425,  521 

V.  .Tones.  10  Gill.  &  J.  404.  159 
Haskell  v.  Wright,  23  N.    J.    Eq. 

389 33 

Haslet  V.  Haslet,  6  Watts.  464.  169,  170 
Hatch  V.  Cobb,  4  Johns.  Ch.  539. 

469,  502,  531,  537 
V.  Kizer  (111.),  30N.  E.  Rep. 

605 474 

Hatcher  v.   Hatcher,    1    McMulleu 

Ch.  311 123,  154,  l.')6,  174,  193 

Hatten  v.  Russell,  38  Ch.  Div.  334.  469 
Hatton  V.  Gray,  5  Yin.   Abr.  525. 

109,  238 

Hangh  v.  Blythe,  20  Ind.  24 141 

Haughwout   V.    Murphy,    7   C.    E. 
Green,  531  .. .  372,  389,  474,  479, 

531,  532 
Haven  v.  Beidler,  40  Mich.  280 ... .    394 

V.  Foster,  9  Pick.  112 317 

Havens  v.  Bliss,  26  N.  J.  Eq.  363. .  422 
Hawkes   v.    East   Co.   Ry.    Co.,    1 
De  G.  M.  &  G.  737. .   66,  233,  261, 

263,  26.5,  871,  411 
Hawkins  v.  Chase,  10  Pick.  502  .. .   106 
V.  Holmes,  1  P.  Wms.  770. 

lOS,  14.5,  157,  173 
V.  Hunt,  14  111.  42...  14."),  150 
V.  King,  2  A.   K.   Marsh, 

108 166 

V.  Mattby,    L.    R.   3    Ch. 

188 23 

Hawley  v.  .Jelly,  25  Mich.  04 455 

V.  Sheldon,  Harr.  Ch.  420. 

220,  237 


xlviii 


TABLE   OF  CASES   CITED. 


PAGE. 

Hawralty  v.  Warren,  18  N.  J.  Eq. 

124 236,238,  317,321,  528 

Hayes  v.  Caryll,  1  Bro.  P.  C.  126..  480 
V.  Harmony    Grove     Cem., 

108  Mass.  400.. .12,  417,  421 
V.  Kansas  City,  Ft.  S.  &  G. 
R.  Co.  (Mo.),  18  S.  W. 

Rep.  1115 167 

V.  Kershew,    1    Sandf.    Ch. 

258 80 

V.  O'Brien   (111.),   26    N.    E. 

Rep.  601.... 210 

V.  Willio,  11  Abb.  Pr.  (N.  S.) 

167 32 

Hayner  v.  American  Ins.   Co.,   69 

N.  Y.  435 21 

Haynes,  In  re,  105  N.  Y.  560 21 

Hays  V.  Astley,  4  De  G.  J.  &  S.  34.  199 
V.  Hall,  4  Porter,  374. 

404,  546,  547 

V.  HolUs,  8  Gill.  357 277 

Haj^vood  V.  Cope,  4  Jur.   (N.  S.) 

227   217,  248,  260,  323,  352 

Hazard  v.  Day,  14  Allen,  487..  108,  124 
V.  New  Eng.  Mar.  Ins.  Co., 

1  Sumn.  218 90 

Hazelrig  v.  Hutson,  18  Ind.  481. 

507,  529 
Head  V.  Meloney,  111  Pa.  St.  99....  499 

Heap  V.  Tonge,  9  Ha.  90 247 

Heapley  v.  Hill,  2  S.  &  S.  29  ..469, 

482,  492 
Heard  v.  Pilley,  L.  R.  4.  Ch.  548. 

115,  128 
Hearne  v.  Tenant,  13  Ves.  289.  447,  466 
Heathcote  v.  North  Staft'Ry.  Co.,  2 

Mar.  and  G.  100 32,  384 

Heavner  v.  Morgan,  30  W.  Va.  335.  546 
Heckard  v.  Sayre,  34  HI.  142.. 462,  467 
Hedderly  v.  Johnson,  42  Minn.  443.  286 
Hedenbergv.  Jones,  73  111.  149....   434 

Heflin  v.  Milton,  69  Ala.  354 137 

Heft  V.  McGill,  3  Barr.  256 183 

Heimbui-g  v.  Ismay,  35  N.  Y.  Sup. 

Ct.  35 374,417,507,  529 

Heinlen  v.  Martin,  53  Cal.  321 389 

Helling  v.  Lumny,  3  De  G.  &  J.  493. 

253,  263,  266,  372 
Hellreigel  v.  Manning,  97  N.  Y.  56.  286 
Helsham  v.  Langley,  1  Y.  &  C.  C. 
C.  175 114,251,328,  335 


PAGE 

Hendei'son  v.  Dickey,  50  Mo   161 . .   346 
V.  Hays,  2  Watts.    148. 

139,  265,  266,  276 

V.  .Johns,  13  Colo.  280..     19 

V.  Vauex,  10  Yerg.  30..     17 

Hendrick  v.  Hern,  4  W.  Va.  620...   167 

Hendrickson  v.  Joins,  Saxon,   562. 

344,  348 
Henking  v.  Anderson,  34  W.  Va.  709.  529 
Henkle  v.  Royal  Ex.  Ass.  Co.  1  Ves. 

Sen.  317 332,  333 

Hennessy  v.  Woolworth,  128  U.  S. 

438 82 

Henry  v  Colby,  3  Brews.  (Pa.)  171.  105 
V.  Henry,  27  Ohio  St.  121 .. .     12 
Hepburne  v.  Auld,  5  Cranch,  262. 

400,  421,  448,  455,  478,  518 
V.  Dunlop,  1  Wheat.  179. 

449,  489 
Hepwell  V.  Knight,  1  Y.  &  C.    Ex. 

C.  415 447 

Herbert  v.  Salisbury,  etc.,  Ry.  Co., 

L.  R.  2Eq.  221 498 

Hercy  v.  Birch,  9  Ves.  357 369 

Herman  y.  Hodges,  L.  R.  16  Eq.  18.     10 

Hern  v.  Nichols,  1  Salk.  289 359 

Hei-ren  v.  Rich,  95  N.  C.  500 201 

Herrick  v.  Starkweather,  54  Hun, 

532 163 

Herrman  v.  Babcock,  103  Ind.  461.  238 
Hersey   v.    Gillett,   18   Beav.    178. 

217,  236,  553 
Hertford  (Marquis)  v.  Boore,  5  Ves. 

719 475,  492 

Hervey  v.  Audland,  14  Sim.  531. ..     79 
Hesse  v.  Briant,  6  De  G.  M.   &  G. 

623 256,  355 

Hetfield   V.    Willey,    105   111.   286.' 

244,  375 
Heth's  Ex  or.  v.  Wooldridge's  Exrs  , 

6  Rand.  605 145,  196 

Heuer  v.  Ruthowsky,  18  Mo.   216.  434 

Hewlett  V.  Miller,  63  Cal.  185 325 

Heydock  v.  Stow,  40  N.  Y.  363 ....    130 
Heywood  v.  MuUalain,   25  Ch.  D. 

357 253 

Hiatt  V.  Williams,  72  Mo.  254 268 

Hibbcrt   V.   Avlott,   52   Tex.   530. 

167,  176 

V.  Shee,  1  Camp.  113 414 

Hickey  v.  Drake,  47  Mo.  369 290 


TABLE    OF   CASKS    CITED. 


xlix 


PAGE . 

Hicks   V.    Phillips,   Pi-e.;.  Ch.   575. 

418,  519 

V.  Turck,  72  Mich.  311 10 

V.  Whitmore,  12  Wend.  548.  128 

Hidden  v.  Jordan,  21  Cal.  92 206 

Higby  V.  Whittaker,  8  Ohio,  198. . .  474 
Higdon  V.  Thomas,  1   liar.   &  Gill. 

139 0(5 

Higgins  V.  Butler,  78  Me.  520,  524.   223 
V.  Samels,  2  J.  &  II.  460. 

290,  300,  306 
V.  Senioi-,  8  M.  &  W.  834.  128 
Higginson  v.  Clowes,   15  Ves.   516. 

327,  336.  343 
Hildreth  v.  Shelton,  46  Cal.  382 ... .  553 
Hile  V.  Davison,  20  N.  J.  Eq.  228..  33 
Hill  V.  Barcley,  16  Ves.  402....  28, 

252,  412,  429,  453 
V.  Brower,  76  N.  C.  124. . .  290,  311 
V.  Buckley,  17  Ves.  392. . .  427, 

505,  506,  511,  522 

V.  Fisher,  34  Me.  143 390 

V.  Gorame,  1  Beav.  540 ... .    80, 

1G2,  231,  547,  548 

V.  Grigsby,  35  Cal.  656 435 

V.  Hobart,  16  Me.  164 432 

V.  Ressegieu,  17 Barb.  162. .  43,  554 
V.  Rich  Hill  Min.  Co.  (Mo.),  24 

S.  W.  Rep.  223 402 

V.  Rockingham  Bk.,  44  N.   H. 

567 18,     19 

Hills  V.  CroU,  I  De  G.  M.  &  G.  627. .  384 
Hilton  V.  Duncan,  1  Coldw.  313  ... .  541 
Hinckley  v.  Smith,  51  N.Y.  21 .  .417.  520 
Hincksman  v.  Smith,  3  Russ.  433..   268 

Hinkle  v.  Hinkle,  55  Ark.  583 163 

V.  Margerum,  50  Ind.  240. .   422 
Hipwell  V.   Knight,   1  You.  &  Col. 

415 444,  454,  461,  462,  487,  492 

Hitchcock  V.  Giddings,  4  Price,  135. 

335,  394 

Hitfield  V.  Willey,  105  111.  286 55 

Hoadley  v.  McLaine,  10  Bing.  482. 

135,  211 

Hoag  V.  Owen,  60  Barb.  34 413 

&  Hitchman's  Contract,  In  re, 

21  Ch.  D.  95 219 

Hoagland   v.  Latourette,   1   Green 

Ch.  254 389 

Hoare  v.  Rennie,  5  Ha.  &  N.  19. ..  390 
Hoback  v.  Kilgores,  26  Gratt.  442..  218 


i'A<;i; 

Ilobb.s  V.  Hull,  1  Cox,  445 27 

Ilobson  V.  Buihanan.  96  N.  C.  444.  4S:» 
V.  Trevor.  2  P.  Wms.    191. 

42,     69 

Hock  V.  Cocks.  7S  Hun,  253 244 

Hodge  V.  Weeks  (S.    C),   9  8.    K. 

Rep.  9(53 474 

Hodges,  ex  parte.  24  Ark.  197 435 

V.  Bla-rave,  IS  Beav.  404..   406 
V.  llorsfall,  1  Russ.  &  Myl. 

116 224 

V.    Howard,    5    R.    I.    149. 

130,  206,  217 
V.  Kowing,  .58  Conn.  12... 7,  109 
Hodgkinson  v.   Kelly,  L.  R.  6  Eq. 

496 23 

Hodgson  v.  Hutchinson,  5  Vin.  Abr. 

522 94 

Hoen  V.  Simmons,  1  Cal.  119 434 

Hoffman  v.  Fett,  39  Cal.  109.  ..167,  218 

Hoge  V.  Hoge,  1  Watts,  214 206 

Hogg  V.  Wilkins,  1  Grant,  67 207 

Hoggart  V.  Scott,  1  R.  &  My.  293. 

230,  240,  492 

Holbrook  v.  Armstrong,  10  Me.  31.   141 

V.  McCarthy,  61  Cal.  216.  114 

Holden  v.  Purifay,  108  N.  C.  163..  476 

Holderness   v.   Lamport,  29  Beav. 

129 68 

Ilolgate  V.  Eaton,  116  U.  8.  33....   479 
Holland  v.  Anderson,  38  Mo.  55.  ..   537 

V.  Ayre,  2S.  &S.  194 91 

V.    Holmes,   14   Flor.    390. 

218,  219,  422 
Hollenbeck  v.  Prior,  5  Dak.  298, 303.  223 
HoUiday  v.  Hubbard,  45  Minn.  333.  223 
Hollingshead  v.  McKenzie,  8  Geo. 

456 199 

Hollis  V.   Burgess,   37   Kan.   487. 

120,  215 

V.  Carr,   Freem.  5 371 

V.    Edwards,    1  Vern.    159. 

9,  166,  173,  ISl 

V.  Whiting,  1  Vern,  151 196 

IJolman  v.  Bk.  of  Norfolk,  12  Ala. 

369 13.5.  215 

V.  Creswell,  15  Tex.  394....    437 

V.  Johnson,  Cowp.  343 365 

Holmes'  Appeal,  77  Pa.  St.  70. 

290.  297,  300,  353 
V.  Caden,  57  Vt.  Ill H'.6 


1 


TABLE   OF  CASES   CITED. 


PAGE. 

Holmes  V.  Kust.  Co.  R'y  Co.,  3  K.  & 

J.  675 225,  431 

V.  Evans,  48  Miss.  247..  130,  215 

V.  Fresh,  9  Mo.  201 271 

V.  Holmes,  44  111.  1G8 174 

86  N.C.  205,208.  138 
Holryod   v.  Wyatt,  1   Deg.   &  Sm. 

125 500 

Holt  V.  Rogers,  8  Pet.  420. .. .   455,  465 

Holt's  Appeal,  98  Pa.  St.  257 286 

Homfray  v.  Fothergell,  L.  R.  1  Eq. 

567 236 

Honeyman  v.  Marryatt,   21  Beav. 

14 85,  90,  91,  124,  207,  462 

Hood  V.  Barrington  (Lord),  L.  R.  6 

Eq.218 126 

V.  Bowman,  1  Freem.  290. 

139,  154,  159,  173 
V.  N.  Y.  &  N.  H.  R.  R.,  23 

Conn.  1.., 76 

V.  North  East.  R'y  Co.,  L.  R. 

8Eq.  666 33,  225 

Hooker  v.   Pynchon,   8  Gray,  550. 

69,  237 

Hooper  v.  Laney,  39  Ala.  388 194 

V.   Smart,    L.    R.    18   Eq. 

683 506 

Hoover  v.  Calhoun,  16  Gratt.  109. 

400,  421,  518 
Hopcraft   v.    Hickman,   2  S.  &  S. 

130 210 

Hope  V.  Hope,  26  L.  J.  Ch.  417. 

27,  231 
Hopkins  v.  Gilman,  22  Wise.  476. 

10,  382,  540 
v.  Mazyck,  1  Hill  Eq.  250.  321 
V.  Roberts,  54  Md.  312. 

193,  223 
Hopper  V.  Hopper,  1  C.  E.  Green, 

147 7 

Hoppough   V.   Struble,    60    N.  Y. 

430 347 

Horn  V.  Ludington,  32  Wise.  73. 

148,  154,  345,  541,  542 
Home  V.  London  &  N.  W.  R'y  Co., 

low.  R.  170 67,383 

Horniblovsr  v.  Shirley,  13  Ves.  81. 

419,  520 
Horry  v.  Glover,  2  Hill  Ch.  515. . .     17 
Horsfall  v.  Garnett,  6  W.  R.  (1857- 
8)387  83,     86 


PAGE. 

Horton  v.  Hubbard,  83  Mich.  ;23,.  546 
Hotchkiss  v.  Forston,  7  Yerg.  67..  257 
Hotham  v.  East  India  Co.,  1  T.  R. 

638 403 

Hough  v.  Coughlan,  41  HI.  130..,.  480 
Houghton  v.  Lees,  1  Jur.  (N.  S.) 

862 42,  79,     81 

House  v.  Beatty,  7  Ohio,  417 476 

V.   Dexter,   9  Mieh.   246. 

549,  550,  554 
v.  Jackson  (Oreg.),  32  Pac. 

Rep.  1027 238 

Houser  v.  Lamont,  55  Pa.  St.  311..    199 

Hovel  V.  Miller,  2  Dur.  103 20 

Howard  v.  Braithwaite,  1  Y.  &  B. 

202 113 

v.  Edgell,  17  Vt.  9  - 276 

V.  Hopkins,  2  Atk.  371. 

69,  553 
V,  Hudson,2El.&Bi.  1..  97 
V.  Kimball,  65  N.  C.  175. 

422.  427,  504 
V.  Moore,  4  Sneed  317. ..  244 
V.  Okeover,  3  Swanst.  421.  121 

Howe  V.  Conley,  16  Gray,  552 431 

V.  Hall,  4  I.  R.  Eq.  242. 

172,  174,  175 
V.  Hunt,  31  Beav.  420  ......    536 

V.  Niekerson,  14  Allen,  400. .     20 
V.  Rogers,  32  Tex.  218. 

137,  137,  168,  174,  474 
Howell  V.  George,  1  Madd.  1. 

259,  328,  373,  525 
V.  Kightley,  21  Beav.  331 . .   440 
Howland  v.  Bradley,  38  N.  J.  Eq. 

288 88,  219,  238 

v.  Norris,  1  Cox,  59. 

420,  497,  518,  520 

Hoxie  V.  Carr,  1  Sumn.  173 340 

Hoy  V.  Hansborough,  1  Freem.  Ch. 

533 13,  21,     66 

V.  Smythies,  22  Beav.  510....    513 

Hoyle  V.  Livesey,  1  Mer.  381  399 

Hoyt  V.  Kimball,  49  N.  H.  322...-    466 
V.  Tuxbury,  70  111.  331. 

223,  434,  455,  478,  480 
Hubbard  v.  Johnson,   77  Me.    139. 

69,  551 
Hubbell  V.  Van  Schoening,  49  N.  Y. 

321 433,  444,  466,  474,  478, 

479,  481 


TABLE    OF  CASES   CITED. 


ti 


PAGE 

Hubert  v.  Treherne,  3  Man.  &  (ti-. 

743 U)8 

Huddleston    v.    Bi-iscoe,    11     Ves; 

583 82,  121 

Hudson  V.  Bartram,  3  Mad.  440. 

462,  487 
V.  King-.  2  Heisk.  560. 

130,  261,  275 
V.  Temple.  29  Beav.  .'i36.i,  462 
HuflF  V.  Jennings,  1  Morris,  434  ....   435 
V.  Shepard,   58  Mo.   242. 

192,  210,  223 
Huffman  v.  Huffman,    118   Pa.    St. 

58  185 

V.  Hummer,  2  C.  E.  Green, 

263 388,  389,  444 

Huger  V.  Lee,  40  Mich    353 334 

Hughes  V.  Hatchett.  55  Ala.  539...  137 
V.  Hughes,  72  Ga.  173. 

186,  268 
V.  Jones,  3  De  G.  F.  &  J. 

307  ... .  425,  510,  519,  520 
V.  Morris,  2  De  G.  M.  &  G. 

349 68,  150,  158 

V.  Parker,  8  M.  &  \V.  244. .   218 
V.  Piedmont,  etc.  Life  Ins. 

Co.,  55  Geo.  Ill 25 

Hugus   V.    Walker,    2   Jones,    173 

186,  192 

Hull  V.  Glover,  126  111.  122  279 

V.  Ritrat,  45  Fed.  Rep.  94... .     25 
V.  Sturdivaut,  46  Me.  34..  69,  444 

V.  Vanghan,  9  Price,  163  371 

Humbard   v.    Humbai-d,    3   Head. 

100 55 

Hume  V.  Pocock,  L.  R.  1  Ch.  379. 

301,  423,  521 

Humphreys  v.  Hollis,  JaC.  73 545 

Hunkins   v.    Hunkins    (N.  11.),   18 

Atl.  R.  655 167,  476 

Hunt  V.  Coe,  15  Iowa,  197 139 

V.  Lipp  (Neb.),  46  N.  W.  Rep. 

632 156,  173 

V.  Hoyt,  10  Colo.  278 167 

V.  Roberts,  40  Me.  187 206 

V.  Ronsmanier,  8  Wheat.  174. 

317,  318,  333,  345 
Hunter,  In  re^  1  Edw.  Ch.  1.  ..237,  437 
V.  Bates,  25  Ind.  299.. 391, 

420,  435,  436,  531 
V.  Bilyen,  30  111.  246 345 


PAGE 

lliuiter    V.    Daniel,    4    Haro,     420. 

403,  431,  468 
V.  Mills,  29  8.  C.  72. ..   79,  185 
Hunting  V.  Daiison,   160  Mass    441.285 
Huntington   v.    Rogers,    9  Ohio  St. 

511..., 331 

Hurlbut  V.  Kantzler,   112   111.    482. 

360,  373,  537 
Hurley   v.  Brown,    98   Mass.    545. 

130,  215,  217.  41.-),  489 
Hurst  V.  Thompson,    73   Ala.    158. 

413,  488,  547 
Husband  v.  PoUai-d,  2  P.  Wms.  467.  80 
Huss  V.  Morris,  13  P.  F.  Smith.  367.  318 
Huston  V.  Noble,  4  J.  J  Mai-sh.  130.  314 
Hutchinson  v.  McNutt,  1  Ohio.  14..  410 
Hutton  V.  Williams,  35  Ala.  .-)03...  123 
Hyde  v.  Cooper.  13  Rich    E4.  250. 

155,  159,  223 

V.  Tanner,  1  Barb.  75 344 

V.  White,  5  Sim.  524 42 

V.  Wrench,  3  Beav.  334 84 

Hymei-s  v.  Branch,  6  Mo.  Ap.  511..   286 

I. 

Ide  V.  Leser  (Mont.),  24  Pac.  Rep. 

695 

V.  Stanton,  15  Verm.  685..  120,  135 

Iglehart  v.  Gibson,  .56  lU.  81 479 

V.  Harding,  73  111.  117...   434 

V.  Vail,  73  111.  63 434 

Ikerd  v.    Beavers.    106     Ind.    483. 

162,  383 
Inge  V.  Birmingham,   etc.  R'y  Co., 

3DeG.  M.  &G.  658..   43,  216 
V.  Lippenwell,  2  Dick  469...  325 
Ingles  r.  Patterson,  36   Wise.    373. 

167,  347 

Innes  v.  Jackson,    16  Ves.  307 525 

Ins.  Co.  of  N.  A.  V.  Union  Canal  Co., 

20  Pa.  L.  J.  65 13,     66 

Irick  V.  Fulton,  3  Gratt.  193... 332,  529 
iMiham  (Lord)  v.  Child,  1  Bro.  C. 

C.   92 322,  323 

Iron  Age  Publi.shing  Co.  v.  Western 
Union  Tel.  Co.  S3  Ala.  498.  ..231, 

233,  285 

Irvin  V.  Blackley,  67  Pa.  St.  24  ... .   433 

V.  Gregory,  13  Gray,  215  ... .    435 

Ii'\ine  V.  Armstrong.  31  Minn.  216..      10 

V.  Thomp.son,  4  Bibb.  295....  115 


lu 


TABLE   OF  CASES    CITED. 


PAGE. 

Irving  V.  Campbell,  121  N.  Y.  353..  279 

Irwin  V.  Bailey,  72  Ala.  467. ...   82,  229 

V.  Dyke,  114  111.  302....  185,  268 

Isaacs  V.  Skrainka,  95  Mo.  517.. 309,  489 
Isham  V.  Therasson  (N.  J.  Eq.),  30 

Atl.  Rep.  969 83 

Ives  V.  Armstrong,  5  R.  I.  506 130 

V.  Hazard,  4  R.  I.  14 109, 

122,  131,  135,  237,  341 

Izard  V.  Izard,  Bailey  Eq.  236 136 

V.  Kimmell  (Nebr.),  41  N.  W. 

Rep.  1068.. 468 

V.  Middleton,  1  Dessau.  116...  140 

J. 

Jackson  V.  Ashton,  11  Pet.  229....  244 

V.  Butler,  2  Atk.  306 18 

V.  Cocker,  4  Beav.  59 23 

V.  Cutright,  5  Mumf.  308..  159 

V.  Edwards,  22  Wend.  498.  456 
V.  Jackson,  1   Sm.   &  Gif. 

184 214,  382,  422,  520 

V.  Lever,  8  Bro.  C.  C.  605.  396 
V.  Ligon,  3  Leigh,  161.  .400, 
421,  448,  462,  466,  469, 

481,  518 

V.  Lowe,  1  Bing.  9  . . . .  120,  124 

V.  Pierce,  2  Johns.  221 ... .  139 
V.  Torrence,    83   Cal.    521. 

374,  529 
Jacobs  V.   Locke,   2  Ired.  Eq.  286. 

504,  554 
V.  R.  R.    Co.,  8  Cush.  223. 

138,  165,  168,  173 
V.   Spalding,   71    Wis.  177. 

190,  266 

Jacox  V.  Clarke,  Walk.  Ch.  508 396 

Jaflee  v.  Jacobson   (C.   C.   A.),   48 
Fed.  Rep.  21;  4.  U.   S.  App.  4;  1 

C.  C.  A.  Rep.  11 163,  190 

James  V.  Litchfield,  L.  R.  9  Eq.  51. 

221,  420,  424,  509 

V.  Patten,  6  N.  Y.  9 108 

V.  Rice,  1  Kay  Ch.  23 200 

V.  St.  Bank,  17  Ala.  69 336 

Jameson  v.  Stein,  21  Beav.  5..  97,  98 
Jamison  v.  Dimock,   95  Pa.  St.  52. 

161,  166 

Jaquith  v.  Hudson,   5  Mich.  123. ..  69 

Jefferson  v.  Jefferson,  96  111.  551. . .  167 


PAQE. 

Jeffery  v.  Stephens,  6  Jur.  (N.  S.) 
947 340 

Jeffreys  v.  Fairs,  L.  R.  4  Ch.  D.  448. 

301,  323,  425,  428 
v.  Jeffreys,    Cr.  &  Ph.  138. 

79,     80 
Jeffries  V.  Jeffries,    117  Mass.   184. 

278,  284,  421 
Jenkins  v.  Eldridge,  3  Story,  181..   208 
V.  Hiles,  6  Ves.  646  .  489 

v.  Hogg,  2  Const.  Rep.  821, 

118,  123 
V.  Parkinson,  2  My.  &  K.  5.   502 
Jenness  v.  Mt.  Hope  Co.,  53  Me.  20.  124 
Jennings  v.    Broughton,    17   Beav. 

234 301,  303,  323 

Jennisons  v.  Leonard,  21  Wall.  302.  455 
Jeromo  v.  Scudder,  2  Roberts,  169.  373 
Job  V.  Banister,  39  Eng.  Law  &  Eq, 

599 429 

Johns  V.  Johns,  87  Ind.  440.  ..170,  174 
V.  Norris,  7  C.  E.  Green,  102. 

478,  479 
Johnson  v,    Bowden,   37    Tex,  621, 

137, 167,  372,  531 
v.  Brook,  31  Miss,  17.,,.  107 
V,  Brooks,  93  N.    Y.    337. 

19,     24 
V.    Dodge,    17    111.    433. 

106,  115 
V.  Furnish,  29  Kan.  523..  114 
V.  Gibson,  116  lU.  294....  10 
V.  Hanson,  6  Ala.  351....  139 
V.  Hoover,  72  Ind.  395...  20 
V.  Hopkins,    19  Iowa,  49. 

475,  479' 
v.  Hurley  (Mo.),  22   S.  W. 

492 179 

v.  Hubbell,   2  Stockt.   Ch. 

332 190,  191,  261 

V.  Johnson.  40  Md   189  ,..     12 
V,  Johnson,  16  Minn,  512. 

207,  223 

V.  King,  2  Bing,  270 92 

V,  Knapp,  36  Iowa,  616, ..   548 
V,  Legard,  T,    &  R.    281. 

241,  254,  287 
V.  McGruder,  15  Mo,   365. 

166,  179 

V,  Mulry,  4  Robt.  401 110 

V,  Nott,  1  Vern,  271 251 


TABLE    OF   (ASKS    CITKl). 


liii 


Johnson  V.  Ogilby,  :}  P.  Wins.  276. 

361,  363 
^  V.  Pontious,  118  Iml.  270..   193 

V.  Roniild,  4  Miunf.  77 135 

•   V.  Shrewsbury,    etc.,    Ry. 
Co.,  3  De  G.  M.  &  G. 

914 67,  231, -365.  383 

V.  Smart,  2  Giff.  ir>1...290,  300 
V.  Smiley,  17  Beav.  223  ..  441 
V.  Somerville,  33  N.  J.  liq. 

152 474 

V.  Trinity     Ch.     See,     11 

Allen,  123 123 

V.  Trippe,    33    Fed.    Rep. 

530 238 

V.  Watson,  1  Geo.  348. ....    141 
V.  Wygant,  11  Weml.  48..  432 
Johnston  v.  Glancey,  4  Blackf.  94. 
139,    155,    159,    164, 
165,    168,    169,    174,  179 
V.  Johnston,  6  AVatts.  370. 

164,  189 
V.  Johnston,  19  Iowa,  74..  185 
V.  Wadsworth  (Oreg-.),  34 

Pac.  Rep.  13 7 

V.  Wallis,  41  Hun,  420 ... .    253 
Johnstone  v.  MapjDin,  60  L.   J.  Ch. 

241 158 

Joice  V.  Taylor,  6  Gill.  &  Johns.  54.  296 
Jones  V.  Bone,  L.  R.  9  Eq.  674  ... .     32 
V.  Boston  Mill  Corp.,  4  Pick. 

507 26 

V.  Carver,  59  Tex.  293 215 

V.  Caswell,  3  Johns.  Cas.  29. 

358,  362 
V.  Clifford,   L.   R.   3  Ch.    D. 

779 334,  521 

V.  Fulgham,     3    Tenn.     Ch. 

193 281,  286 

V.  Green,  3  Y.  &  J.  208 69 

V.  Heavens,  L.  R.   4  Ch.  D. 

636 32,     69 

V.  How,  7  Hare,  267 377 

V.  Jones,  12  Ves.  188...   370,  482 

V.  Jones,  49  Tex.  683 389 

V.  Littledale,  6  A.  &E.  490..  129 
V.  Lloyd,  117  111.  597...  'l99,  353 

V.  Lock,  L.  R.  1  Ch.  25 80 

V.  McDougal,  32  Miss.  179. . .  206 
V.  Newhall,  115  Mass.  244.  7,  232 
V.  Noble,  3  Bush.  604..   110,  459 


rAOK 

Jones  V.  Parker  (Mius.s.),   40  N.    K. 

R.  1044 225 

V.  Pease.  21  Wise.  644..   166, 

172,  189 
V.  Petaluma,  36  Cal.  230 ....  434 
v^  Peterman,    3   Serg.    &    U. 

.543..   1.53,  150,  164,    Iti.'i. 

173.  174 

V.  Price,  2  Anstr.  924 4S4 

V.  Robbins.  29  Me.  351 ..  235, 

236,  412,  444,  449,  4.53, 

455,  460,  489 

V.  Robert.s,  6  Call.  187 410 

V.  Roe,  T.  R.  88   41 

V.  Schackleford,  2  Bibb.  410. 

504,  540 

V.  Taylor,  7  Tex.  240 240 

Jordan  v.  Sawkins,    3    Bro.     C.    C. 

388 325 

V.  White,  20  Minn.  91 .548 

Joseph  V.  Holt,  37  Cal.  250. ..   122,  224 
Joslin  V.  Stokes,  38  N.  J.  Eq.  31. . .     66 

Joslyn  V.  Taylor,. 33  Vt.  470 437 

Jourdain  v.  Fox  (Mis.),   62  N.  W. 

Rep.  936 159 

Joy  V.  St.  Louis,  138  U.  S.  1 . .  31 .  33. 

126,  214 
Joynes   v.    Statham,    3    Atk.    388. 

48,  203,  330,  343 

Judd  V.  Mosely,  30  Iowa,  423 5.54 

V.  Skidmore,  33  Minn.  140. . .   462 

Judy  V.  Gilbert,  77  Ind.  96 173 

Justice  V.  Lang,  42  N.  Y,  493..  109, 

110,  230 
Justices  V.  Croft,  18  (Jeo.  473..  13.  66 
Ju/an  V.  Toulmin,  9  Ala.  6(i2..  271,  290 

K. 

Kansas  Construction  Co.  v.  Topeka 

R.  R.,  135  Ma.-^s.  34 10,     28 

Karker   v.    Ilaverly,    50    Barb.  79. 

433,  460 

Karns  v.  Olney,  80  Cal.  90 89,  477 

Kauffman's  Appeal,  55  Pa.  St.  383.       7 

V.  Cook,  114  111.  11 173 

Kay  V.  Crook,  3  Sm.  &  Criff.  407. . .     08 
V.  Curd,  6  B.  Monr.  103..  130, 

13.5,  193,  106 
Kayser  v.  Arnold,  124  N.  Y.  274...   124 

Keat  V.  Allen.  2  VerA.  .588 362 

Keegau  v.  Williams,  22  Iowa,  378..   531 


liv 


TABLE    OF   CASES    CITED. 


PAGE. 

Keen  v.  James,  39  N.  J.  Eq.  527..   354 
Keiin  v.  Lindley   (N.    J.    Eq.),    30 

Atl.  Rep.  10f33 114,  116, 

340,  345,  477,  478 
Keisselbrack     v.     Livingstone,     4 

Johns.  Ch.  148 344,  345,  348 

Kekewicli  v.  Manning,  1  De  G.  M. 

&G.  176 80 

Keller  v.  Fisher,  7  Ind.  718...  444,  448 
V.  Stanberg,  13  Ohio,  408...   166 
V.  Webster,  12  C.  B.  283 ... .    138 
Kellogg  V.  Lavender,  9  Neb.  418. 

45,  444,  546 

Kelly  V.  Central  Pacific  R.  R.  Co., 

74  Cal.  557 310,  371 

Kelso  V.  Lorillard,  85  N.  Y.  177...   2S3 

Kemble  v.  Kean,  6  Sim.  333..   224,  383 

Kemeys  v.  Hansard,  Coop.  125. . . .   251 

V   Proctor,  3  V.  &  B.  57..  117 

Kemp  V.  Coleman,  1  Salk.  156 362 

V.  Humphreys,  13  111.  573. . .  462 
Kempshall  v.   Stone,  5  Johns.  Ch. 

193 502,  531,  537 

Kendall  v.   Almy,    2    Sumn.    278. 

224,  225,  227 

V.  Beckett,  2  R.  &  M.  88..  268 

V.  Frey,  74  Wis.  26 . .  28,  30,     31 

Kennedy  v.  Gramling,  33  S.  C.  367.     90 

V.  Kennedy,  2  Ala.  571  . .   204 

V.  Lee,  3  Meriv.  441. 

69,  82,  86,  89,  90,  215 
V.  Umbaugh,  Wright,  327.  333 
Kennemore  v.  Kennemore,  26  S.  C. 

251 171 

Kenney  v.  Wexham,  6  Mad.  355. 

6,  7,  25,  232,  399 
Kennicott  v.  Leavitt,  37  111.  App. 

435 67 

Kenny  v.  Hoffman,  31  Gratt.  462..  286 
Kensington,  Ld.,  v.  Phillips,  5  Dow. 

61 218,  222 

Kent  v.  Carcaud,  17Md.  291..  426,  522 
Kenworthy  v.   Scofield,   2  B.  &  C. 

945 117 

Kerby  v.  Harrison,  2  Ohio  St.  326. .   403 
Kerr  v.  Day,  2  Harris,  112. 

236,  289,  391,  445,  531 
v.  Purdy,  50  Barb.  24. 

326,  433,  459,  460 
Kershaw  v.  Kershaw,  L.  R.  9  Eq. 
56 497,  498 


PAGE. 

Kettdium  v.  Evertson,  13  Johns. 

359,  437 
Key  V.  Bradshaw,  2  Vern.  102 ....  362 
Keyport,  etc.   Co.  v.  Lorillard  (N. 

J.),  19  Atl.  Rep.  38 468 

Kidder  v.    Barr,    35   N.  H.   235. 

155,  159 
v.  Chamberlin,  41  Vt.  62..   271 

v.  Hunt,  1  Pick.  331 139 

Kidney  v.  Stoddard,  7  Met.  252...   353 
Killough  V.  Lee  (Tex.  App.),  21  S. 

W.  Rep.  970 459 

Kilpatrick   v.    BaiTon,   125   N.  Y. 

751   279 

Kimball  v.  Noyes,  17  Wise.  695.. .   548 
V.  Tooke,  70  111.  553. 

443,  444,  462 
Kimberly  v.  Jennings,  6  Sim.  340. 

258,  259,  267,  383 
Kimmerle  v.  Hass,  53  Mich.  341  . .  326 
Kinard  v.  Hiers,  3  Rich.  Eq.  423..  203 
Kindley  v.  Gray,  6  Ired.  Eq.  445. 

240,  423 
Kine  v.  Balfe,  2Ball  &  B.  343..  164,  174 
V.  Bardeau,  5  Johns.  Ch.  38 . .  420 
V.  Hamilton,  4  Pet.  311. 

415,  448,  450,  490 

King  V.  Howard,  27  Mo.  21 369 

V.  Knapp,  59  N.  Y.  462. 

400,  421,  427,  518 
V.  Ruckman,   5  C.  E.  Green, 

316 21.0, 

223,  389,  400, 
444,  454,  496, 

504,  521 
21N.J.  Eq.599.  325 
V.  Thompson,  9  Pet.  204. 

185,  186,  541 
V.  Wilson,    6   Beav.    124. 

428,  469,  486,  509,  517,  522 

V.  Wood,  7  Mo.  389..  123,  129,  216 

Kingston  v.  Young,  44  Mich.  339..  170 

Kinkead  v.  Shreve,  17  Cal.  275 ... .   432 

Kinlock  v.   Savage,  1  Spier's  Eq. 

471   135 

Kintrea   v.    Preston,  25  L.  J.    Ex. 

287 219 

Kip  v.  Hirsch,  103  N.  Y.  586 287 

V.  Norton,  12  Wend.  127 171 

Kirby  v.  Harrison,  2  Ohio  St.   326. 

393,  455,  461,  462,  474,  478,  479 


TABLE    OF  CASKS    CITKI). 


Iv 


Kirk   V.    13n)inley    Union.    2   Phil. 

640  40,  41,  140 

Kirkman  v.  Miles,  13  Ves.  338  ....    888 

Kirksey  v.  Fiko.  27  Ala.  383 . . 9,  1 4,     21 

V.  Kirksey,  30  Geo.   150..   190 

Kirwan  v.  Blake,  'J  Moll.  oSl  490 

Kisler  v.  Kisler,  2  Watts,  323.  ....   20(3 
Klauber  v.   Car  Co.,   95  Cal.  353, 

358 372 

Kleinschinidt       v.       Kleinschinidt 

(Mont.),  24  Pac.  Rep.  266 12 

Klyce  V.  Brayles,  37  Miss.  524. 

434,  455 
KnatchbuU   v.    Grueber,    1  Madd. 

153 421,  429,  430,  493,  518,  520 

Knight  V.  Bunn,  7  Ired.  E(i.  77  . ..   324 

V.  Crockford,  1  E.sp.  190...   107 

Knobb  V.  Lindsay,  5  Ham.  468 ....    271 

Knoll  V.  Harvey,  19  Wise.  99    154 

Knolleys  V.  Alcock,  5  Ves.  048....   553 
Knott  V.  Manuf.  Co.,  30  W.  Va.  792. 

21,  34,  371 
V.  Stejihens,  5  Oreg.  235. 

444,  449,  454,  545,  553 

Knox  V.  McFarren.  4  Colo.  586.,..    205 

V.  Spratt,  19  Fla.  817...  371,  372 

23Fla.  64   ...  474.  508 

Knye  v,  Moore,  1  S.  &  S.  61 18 

Koch  V.  National  Union  Bldg.  Asso. 

(I11.)27N.  E,    530 174 

Kofka   V.    Rosicky  (Nebr.),  59  N. 

W.  Rep.  788 268 

Koiiplein  v.  Kopplein  (Tex.  Api^.), 

28  S.  W.  Rep.  220 21 

Kostenbader  v.  Peters,  80  Pa.  St. 

430....  201,  284,  286 
V.  Spotts,   80  Pa.   St. 

430 279,  286 

Kramer  v.  Dinsmore,  152  Pa.  St. 

264  259 

Krobn  v.  Williamson,  62  Fed.  Rep. 

869   : 19 

Kuchenbeiser  v.    Beckert,   41    111. 

172 332 

Kuhn  V.  Freeman,  15  Kans.  423.. .     12 

Kurtz  V.  Hibner,  55  III.  514 185 

Kyle  V.  Kavanagh,  103  Mass.  356..   218 

L. 

La^-ey,  Ex  parte,  6  Ves.  625 241 

Lachlan  v.  Reynolds,  Kay,  52 523 


I'AGK 

Lacombe  v.  Forstnll's  Sons,   123  U. 

8.  562 537 

Ljieon  V.  Mertin.s,  3  Atk   3. 

153,  159,  164.  198,  200 
La<ld  V.  Stevenson.  43  Hun,  541 . . .   223 

Lallan  v,  Naglee,  9  Cal.  662  236 

Laidlaw  V.  Organ,  2  Wheat.  178. ..   3.53 
Lning  v.  MeKee,  13  Mich.  124  ....   206 

Laird  V.  Allen.  82  111.  43 167 

V.  Birkenhead  R'y  Co., Johns. 

500 194 

Lamare   v.    Dixon,    L.   R.   6  H.  L. 

414 55,  413 

Lamb  v.  Harris,  8  Ga.  546 327 

V.  Hinman,  46  Mich.  112. 

133,  166,  170,  218 
Lambert   v.   Watson,   6  Har.   &  J. 

252 196 

476 
174 


v.  Weber.  83  Mich.  395. 
Lamme  v.  Dod.son,  4  Mont.  560  ... 
Lammot  v.   Bowley,    6  Har.  &  J. 

500 321 

Lamprey  v.    Lamprey,    29    Minn. 

151 79 

Lamson  v.  Martin,  159  Mass.  557..  259 
Lancaster  v.  Roberts  (111.),  33  N.  E. 

Rep.  27 468,  477,  488,  504 

Lancaster,   etc.  R'y  Co.  v.  North- 
west. R'y  Co.,  2  K.  &  .J.  293...       32 
Landers  v  Mclntyre,  8  Wash.  203.  417 
Lane  v.  Newdigate,  10  Ves.  192. . .     29 
v.  Shackford,  5  N.  H.  132. 

139,  160 

Laner  v.  Lee,  6  Wright,  165  325 

Langdon  V.  Keith,  9  Vt.  299 332 

Langelliei*   v.    Schaeffer,  36   Minn. 

361 86,90,     92 

Langford  v.  Pitt,  2  P.  Wms.  630....  489 
Lainer  v.  Wyman,  5  Roberts,  147..  332 
Laningv.  Cole,  3  Green  Ch.   229. 

109,  410 
Lankton  v.  Stewart,  27  Minn.  346. 

20,  218 
Lanz  V.   McLaughlin,   14  Minn.  72. 

88,  94,  111,  159 

Larison  V.  Burt,  4  W.  &  S.  27 449 

v.  Polheinns,  36   N.  .1.  Eq. 

.^06 193 

Larkins  v.    Biddle,    21    Ala.    252. 

318,  320,  322 

Lassahce  v.  Tierney,  1  McN.  &  G. 

551 158 


Ivi 


TABLE    OF  CASES   CITED. 


PAGE 

Latt in  V.  Hazard,  91  Cal.  87 231 

V.  McCarty,  41  N.  Y.  107...  346 
Laub  V.  Buckmiller,  17  N.  Y.  620..  346 
Lauderdale   v.    Hallock,   7   Sm.  & 

Mar.  622 332 

Laughtir's  Case,  5  Co.  Rep.  21 ... .   377 
Laverty  v.  Hall's  Adm's,  19  Iowa, 

526 488 

V.  Moore,   33   N.    Y.    658. 

420,  531 

Lavette  v.  Sage,  29  Conn.  577 257 

Law  V.  Grant,  37  Wise.  54S 290 

V.  Henry,  39  Lid.  414 12 

V.  Urlwin,  16  Sim.  377 253 

Lawder  v.    Blachford,    Beat.    522. 

245,  260 

Lawe  V.  Hyde,  39  Wise.   345 347 

Lawes  v.  Gibson,  L.  R.  1  Eq.  135..  499 
Lawrence  v.    Beaubein,   2   Bailey, 

623 321 

V.  Fox,  20  N.  Y.  268....  549 
V.   Lawrence,    6   C.    E. 

Green,  317....  474,  479 
V.  Saratoga  R.  R.    Co., 

36  Hun,  467..  28,33,  223 
V.  Staigg,   8  R.  I.   256. 

314,  335 

Lawrenson  v.  Butler,  1  Sch.  &  Lef. 
13....   110,  112,  236, 

239,  242,  508 
V.  Taylor,  5  Hill,  107..   115 
Lawton  v.  Champion,  18  Beav.  87. 

245,  248 

Lay  V.  Huber,  3  Watts,  367 416 

Laythoarp  v.   Bryant,  2  Bing.   (N. 

C.)  735   109 

Leach  v.  Forbes,  11  Gray,  506 24 

Leak  v.    Morrice,    2  Ch.   Cas.   135. 

159,  196 
Leaird  v.  Smith,  44  N.  Y.   618. 

433.  444,  449,  474,  477 

Lear  v.  Chouteau,  23  111.  39 50 

Leavitt  v.  Palmer,  3  N.  Y.  19 317 

Lechmei  e  v.  Brasier,  2  J.  &  W.  289.  491 
Le  Couteulx   v.    Buffalo,    33  N.  Y. 

333 76 

Lee  V.  Briggs,  6  N.  Y.  Supp.  98...  225 
V.  Cherry,  95  Tenn.  707..  122,  126 
V.  Kirby,  104  Mass.  420..   265, 

273,  275,  349,  397 
V.  Lee,  9  Barr.  169 189,  190 


Lee  V  Lee,  L.  R.  4  Ch.  D.  175 225  < 

Leeds,  Dk.  of,  v.  Amherst,  Earl  20 

Beav.  239 144 

Leeds  v.  Penrose,  46  N.  J.  Eq.  294.  474 

Leeper  V.  Lyon,  68  Mo   216 551 

Leftin  v.  Erspy,  4  Yerg  84 17 

Legal  V.  Miller,  2  Ves.  Sen.  299. 

198,  325,  336,  343 
Leggett  V.  Legett,  88  N  C.  108....  204 
Leggott  V.   Met.  R'y  Co.,   L.   R.   5 

Ch.  716 ;.   496,  497 

Lehigh  Coal  Co.   v.   Ctmtral  R.  R. 

Co.,  41  N.  J.  Eq.  167 253 

Lehman  v.  McArthur,  L..  R.  3  Eq. 

746, 477 

Leicester  V.  Foxcroft,  Prec.  Ch.  519.  136 
Leicester  Piano  Co   v.  Front  Royal, 

etc.  Co.  (C.  C.  A.),  55  Fed.  Rep. 

190,196 55,262,267,  400 

Leigh  V.  Haverfield,  5  Ves.  452....    198 
Leitensdorfer   v.    Delphy,   15    Mo. 

160 345 

Leman  v.  Whitley,  4  Russ.  423....   207 
Lennon  v.  Napper,   2  Sch.  &  Lef. 

682 45,  391,  402 

Lente  V.  Clarke,  22  Fla.  515 215 

Lenty  v.  Hillas,  2  De  G.  &  J.  110..   545 
Leominster   Canal   Co.    v.  Shrews- 
bury, etc.  R'y  Co.,  3  K.  &  J.  654.     43 

Leonard  v.  Crane,  147  111.  52 257 

Lerned  v.  Wannemacher,  9  Allen, 

412 108,121,  122,  129 

Leslie  v.  Crommelin,    2   I.  R.    Eq. 

134 507 

V.    Tomp.son,    9   Hare,   268. 

328,  335 

Lesley  v.  Morris,  9  Phila.  110..  279, 

281,  417,  507 
Lessee   of   Billington   v.    Welsh,    5 

Binney,  129 166 

Lester  v.  Foxcraft,  1  Cal.  Par.  Cas. 

108 136,145,  205 

V.  Jewett,  12  Barb.  502,  110,  432 
V.  Kinne,  37  Conn.  9....  154, 

156,  192 
Letcher  v.  Crosby,  2  A.  K.  Marsh. 

106 159,  206 

Letsey  v.  Whittemore,  111  III.  267..  400 
Levy  V.  Bush,  45  N.  Y.  589. ..  105, 
i                                                       207,  547 
V.  Cohen,  4  Geo.  1 95 


TABLE    OF   CASES    CITED. 


Ivii 


I'AGK. 

Levy  V.  Iroquois  Bulg-.  Co.  (Md.),  30 

Atl.    Rep.  707 28G 

V.  Lindo,  3  Men.  81. .   458,  4C5,  468 
Lewers  v.  Shaftesbury,  L.  R.  2  Eq. 

270 53;') 

Lewin  v.  Guest,  1  Russ.  325. . .  425, 

,420,  521 
Lewis  V.  Bond,  IS  Beav.  85... 370,  429 
V.  Gollner,  129  N.  Y.  227....   225 
V.  Lechmere   (Ld.),  10  Mod. 

503 276,  481 

V.  Madison,  1  Mumf.  303....     42 
V.  Montgomery  B.  &  L.  Ass,, 

70  Ala.  270 159 

V.  Smith.  9  N.  Y.  502 389 

V.    Sh.    Wales    R'y    Co.,    10 

Hare,  113 498 

V.  Wood,  153  Mass.  321 120 

V.  Yale.  4  Flor.  418 531 

Lewry  V.  Buffinyton,  6  W.  Va.  249..  137 
Ley  V.  Huber,  3  Watts,  367..  ..449.  489 
Leyland  v.  lUingworth,  2  De  G.  F. 

&  J.  284 293,  297,  299,  312,  520 

Lies  V.  Stub,  6  Watts.  52 317 

Light  V.  Light,  9  Harris,  407.. 31 7, 

320,  321 
Lightfoot  V.  Heron,  3  Y.  &  C.  Ex. 

586 251,   257 

LiUie  V.  Legh,  3  De  G.  &  J.  204. 

29,  370,  430,  536 
Lincoln  v.  Areedeckne,   1   Coll.  C. 

C.   38 279 

V.  Wright,  4  DeG.  &  J.  16. 

174,  197,  203 
Lindsay  (Earl)   v.   Gt.    North.  R'y 
Co.,   10  Hare,   664. 

40,  149,  375 
V.  Lynch,    2   Sch.    &   Lef.   1. 
129,    139,    152,  153,  192, 

198,  340,  341 
V.  Pleasants,  4  Ired.  Eq.  821..   388 
V.  Springer,  4  Harring.  574..   171 
Lindsey  v.    Vessey,    62   Ala.  421. 

290,  310 
Lingen  v.    Simpson,    1     S.    &     S. 

600 14,     19 

Linkous  V.  Cooper,  2  W.  Va.  67...  281 
Linn  v.  McLean,  80  Ala.  360....  95, 

114,  371 

85  Ala.  250 174 

Linton  v.  Potts,  5  Blackf.  396 444 


PAGE. 

Lipp  V.  Hunt,  26  Nebr.  91 166 

List    V.    Rodney,  83  Pa.   St.    483. 

279.  286 
Littei-ail    v.    .lack.son.    80   Va.    004. 

207.  223 

Little  V.  Pearson.  7  Pi.k.  301 123 

V.'  Thurston,  .")8  Me.  80.  ..372,  531 
Littlefield  v.  Littletield,   51  Wis.  23, 

30 170 

v.  Tinseley,   26  Tex.  353.  281 
Liverpool  Boi-oughBk.  v.  Turner,  2 

DeG.  F.  &;  J.  502 68 

Livingston  v.  Livingston,    2  Johns. 

Ch.  537 130 

v.    Peru    Iron    Co..    22 

Beav.  402 354 

Lloyd  v.  CoUett,  4  Bro.  C.  C.  469. 

400,  402,  403,  474,  482,  485 

V.  Farrell,  48  Pa.  St.  73 437 

V.  Lloy.i.    2  Myl.  &  Cr.  204. 

405,  400 
V.  London,    etc.    R'y   Co.,    2 

DeG.J.  &S.  568 32 

V.  Rippingate,  1  Y.  &  C.  Ex. 

410 462 

V.  Wheatley,  2  Jones  Eq.  267.     66 
Lolxlell  V.  Lobdell,   36   N.  Y.   327. 

185,  192,  226 

Lockhart  v.  White,  77  Ga.  786 199 

Lockman  v.  Reilly,  29  Hun,  434. ..  284 
V.  Reilly,  95  N.  Y.  64....  286 

Loffus  V.  Maw,  3  Giff.  592 98,     99 

Logan  V.  Bull,  78  Ky.  007.  281,  286,  489 
V.    Wienholt,   1    CI.   &   Fin. 

611 69,   268 

Lombard  v.  Chicago  Sinai.   Cong., 

75  III.  271 325,  496,  518 

London,  etc.  R'y  Co.  v.  Winter,  Cr. 
&  Ph.  57..  40,  149,  337;  340,  341,  343 

Long  V.  Collier,  4  Russ.  269 491 

V.    Duncan,    10     Kans.     294. 

192,  194,  223 
V.  Fletcher,  2  Eq.  Cas.  Abr. 

5 415,  518 

Longworth   v.    Taylor,     1  McL(»an, 

395 278,  440,  477 

V.  Stephens,  1  Y.  &  C. 

Ex.  222 401,  499 

Long  V.  Hartwell,  34  N.  J.  L.  110..  400 
Longworth    v.    Taylor,    1  McLean, 
395., 40a 


Iviii 


TABLE   OF  CASES   CttED. 


PAGE. 

Lord  V.  Underduiik,    1    Sandf.  Oh. 

46 40,  150,  165,  168,  550,  553 

Lord's  Appeal,  105  Pa.  St.  451. 

178,  174,  182,  198 
Lor     Ang-eles     Immigration,      etc. 
Assoc.  V.    Phillii)s,    56   Cal.  539. 

88,  124,  209 

Losed  V.  Moray,  57  Barb.  561 207 

Louisville  &  N.  R.  Co.  v.  M.  &    T. 

R.  Co.  (Tetin.),  22  S.  W.  920 31 

Louisville  &  N.  R.  Co.   v.    Philyaw 

(Ala.),  10  So.  83 l37 

Loung  V.  Frost,  1  Md.  377 171 

Lounsbui'y  v.    Locander,   2.')  N.  J. 

Eq.  555 516 

Love  V.  Cobb,   63  N.  C.  324 873 

V.  Neilson,  1  Jones  Eq.  339.  138 

V.  Welch,  97  N.  C.  200 474 

Lovell  V.  Hicks,  2  Y.  &  0.  Ex.  46..  291 
Lovelock  V.  Franklyn,  8Q.  B.  371...  403 
Low  V.  Bouvcrie  (1891),  3  Ch.  82..  296 

V.  Bryant,  30  Geo.  538 149 

V.  Tread  well,  3  Fairf.  441.  245,  479 

Lowe  V.  Peers,  4  Burr.  2235 362 

Lowes  V.  Lush,   14  Ves.  547... 280, 

287,  407 
Lowndes  v.   Chisholm,    2  McCord's 

Eq.    455 321 

V.  Lane,  2  Cox,  363. .  290, 

300,  301,  303 
Lowry  v.  Buffing'ton,  6  W.  Va.  249. 

49.  55,  166 
v.  Mehaffy,  10  Watts,  387..  112 
V.    Muldrow,   8    Rich.   Eq. 

241 24 

V.  Spear,  7  Bush.  451 ^    268 

Lowther  v.  Andover  (Lady),  1  Bro. 

C.  C;  396 493,  496 

v.  Lowther,    13    Ves.    95. 

14,  15,  17,  273 

Loxley  v.  Heathy  27  Beav.  523 98 

Loyd  V.  Loaring,  6  Ves.  773 14,     15 

Lucas  V.  Baldridge,    82    Mo.    App. 

362 266 

V.  Commerford,  3  Bro.  C.  C. 

166 28,  384 

V.  James,  7  Ha.  410. .  90,  91, 

108,  195,  278,  352 
V.  Scott,  41  Ohio  St.  636.  508,  527 
Luckett  V.  Williamson,  37  Mo.  388. 

449,  489,  504 


PAGE. 

Luco  V.  Commercial  Bank,  70  Cal. 
839 554 

Luders  v.  Austey,  4  Ves.  501 98 

Ludlow  V.  Cooper,  13  Ohio,  552....   474 
v.  O'Neil,  29  Ohio  St.  181..  286 
Ludluin  V.  Bucking-ham,   35    N.   J. 

Eq.  71 244 

V.  Bu<;kingham,    39    N.    J. 

E(l.  563 400 

Luckey  v.  Higgs,  24  L.  J.  Ch.  495.  266 
Lumber  Co.  V.  Harrigan,  36  Kan. 

387.. 479,  488 

Lumley  v.  "Wagner,  1  De  G.  M.  &  G. 

604 31,  384 

Lyddal  v.  Weston,  2  Atk.  20 286 

Lyde  v.  Myner,  4  Sim.  505 20,     42 

Lydick  v.  Holland,  83  Mo.  703,  707.  158 
Lyle  v.  Yarborough,  Johns.  70....  491 
Lyman  v.  Gedney,  114  111.  388..  69,  334 

V.  Little,  15  Vt.  576. .  .• 833 

V.  Robinson,  14  Allen,  242.   121 
V.  U.  S;  Ins.   Co.  17  Johns. 

373..332,  333,336,  344,  345 
Lynch   v.    Jennings,   43   Ind.    276. 

435,  436 
Lynes   V.  Hayden,   119  Mass.   482. 

215,  223 

Lyon  V.  Richmond,  2  Johns.  Ch.  51.  317 

Lysney  v.  Selby*  2  Ld.  Raym.  1118.  303 

Lytton  V.  Gt.  North.  Ry.  Co..  2  K. 

&  J.  394 29 


M. 

Macbl-yde  v.  Weeks,  22  Beav.  533. 

359,  457,  469,  470 
Macclesfield,  Ld.  v.  Davis,  3  V.  & 

B.  16 14,  15 

Machette  v.  Hodges,  6  Phila.  296..  32 

Mackay  v.  Moore,  Dudley,  94 114 

Mackey  v.  Omer,  31  Minn.  103 ... .  462 

Mackrell  v.  Hunt,  2  Madd.  34  w . . . .  500 
Mackreth  v.   Marlar,    1   Cox,    259. 

462,  493 

v.  Symmons,  15  Ves.  329.  388 

Maclean  v.  Dunn,  4  Bing.  722 116 

Mactiei-  v.  Frith,  6  Wend.   103.. 83, 

93,  95,  235 

Maddefoi-d  v.  Austwick,  1  Sim.  89.  352 
Maddison  v.  AldersOn,  8  App.  Cas. 

407 153,  162 


lAHLE    OF  CASES    OITKD. 


lix 


PACK. 

Madeira  v.  Hopkins,  13  B.  Mon.  595.  226 
Miuieley  v.  Booth,  2  Do  G.  &  S.  M. 

712 41S,  519 

Madison  v.  Chinn,   3  J.    J.    Marsh, 

230 13,     m 

Magee  v.  Blankenship,    05    N.    C. 

563 104,  123 

V.  McManus,   70    Cal. '  553. 

88,  124,  223,  474 
Magennis  v.   Fallon,   2  Moll.  561. 
286,  422,  487,  491,  492,  499,  515,  520 

Magoffin  V.  Holt,  1  Duval,  95 459 

^     Magraffv.  Muir,  57  N.  Y.  155    ....    244 
Magranc.  v.  Archbold,  1   Dow,   107. 

69,  253 
Maguire  v.   lle.rutz    (Pa.),    30   Atl. 

Rep.  151 553 

Mahana  v.  Blunt,  20  Iowa,  142 174 

Mahon  v.  Baker,  2  Casey,  519..  175,  185 
Main   v.    Melbourne,    4   Yes.    720. 

159,  480 
Mair  v.  Himalaya  Tea  Co.,   L.  R. 

1  Eq.  411 67,  383 

Malins  v.  Brown,  4  N.  Y.  403..  20, 

163,  164 
V,  Freeman,    2     Keen,    25. 

328,  335 
Mallocks  V.  Young,  66  Me.  459  ... .  433 
Maltby  v.  Austin,  65  Wise.  527 ....  478 
Manhattan,  etc.  Co.  v.  New  Jersey 

Stock,  etc.,  23  N.  J.  Eq.  161 33 

Manhattan,  etc.  Co.  v.  Yan  Keuren, 

23N.  J.  Eq.  161 33 

Manly  v.  Howlett,  55  Cal.  94 185 

Mann  v.  Dunp,  2  Ohio  St.  187 470 

V.  Higgins,  83  Cal.  66 135 

V.  Stephens,  15  Sim.  379  ....    384 
Manning,  ex  parte,  2  P.  Wms.  410. 

497,  500 
V.  Riley  (N.  J.  Eq.),  27  Atl. 

Rep.  810 l,-)8 

Manser  v.  Back,  6  Har.  443...  114, 

328,  331,  335,  343 
Manstieid  v.  Hodgdon,    147   Mass. 

304 433,  453 

Mantz  V.  Maguire,  52  Mo  App.  136.  129 
Manton  v.  Ray  (R.  I.),  29  Atl.  Rep. 

998 24 

Marble  Co.  v.  Ripley,  10  Wall.  339. 
28,  31,  49,  57,   GO,  229,  245,  246, 
247,  255,  258,  263,  383,  384,  397,  430 


I'AGE. 

Marcus  v.  Barnard.  4  Robt.  219  ...  110 
Margraf  V.  Muir,  57 N.  Y.  155.. 258,  314 
Mai'latt  V.  Warwick,  3  C.  E.  Green, 

109.- 20(; 

Mariow  v.  Smith.  2  P.  Wms.  198..  279 
Man-  V.  Shaw,    51   1<\m1.   Rej).   8(:0. 

/  92,  193,  2.")9,  201 

Marsh  V.  Milligan,    3   Jur.    (N.  S. ) 

979 223,  373 

V.  Wyckoff,  10  Bosw.  202...   417 
Mar.sh    and    East  Gi-anville,  In  re, 

24  Ch.  D.  11 253 

Marshall  V.  Berridge,    19    Ch.     D. 

233 217 

V.  Caldwell,    4    Cal.    611. 

373,  434,  504 
V.  Collett,  1  Y.  &C.  232..  316 
V.  Lynn,  6  M.  &  W.  109..   135 

V.  Peck,  91  111.  187 193 

V.  Powell,  9  Q.  B.  779  .. .  390 

Martin  v.  Colby,  42  Hun,  1 373 

V.  Cotter,  3  J.  &  Lat.   496. 

286,  300,  419,  439,  4  40,  519 
V.  Hamlin,  18  Mich.  354  ...  317 
V.    Martin,    6    B.    Mon.    8. 

204,  206 
V.  McCord,  5  Watts,  493...  179 
V.  Mitchell,  2  J.   &  W.  413. 

109,  250,  373,  525 
V.  Morgan,  87  Cal.  203.  .459,  462 
V.  Nutkins,  2  P.  Wms.  266.  32 
V.  Patterson,  27  S.  C.  621  ..  167 
V.  Pycroft,  2  De  G.  M.  &  G. 

785 331,  340,  341,  343 

Martindale  v.  Smith,  1  Q.  B.  389..  390 
Marvin  v.  Bennett,  8  Paige,  312.. .  335 
Mason  v.  Armitage,  13  Yes.  25. 

314,  327 
V.  Owens,  56  111.  259..  474,  479 

V.  Payne,  47  Mo.  517 459 

V.  Wallace,  3  McLean,  148. 

448,  476 
Massey  v.  Mcllwain,  2  Hill  Ch.  42] . 

139,  193 
Massie  v.  Watts,  6  Cranch,  148 ....  10 
Masson's  Ap^jeal,  20  P.  P.  Smith, 

26 304,  312,  532 

Master  of  Clare  Hall  v.  Harding, 

6  Ha.  296 499 

Miuster.son  v.  Little,  75  Tex.  682...  124 
Mast  in  V.  Grimes,  88  Mo.  478..  109,  433 


Ix 


TABLE    OF   CASES    CITED. 


PAGE. 

Mastin  v.  Halley,  61  Mo.  196. 

210,  223,  231,  385 
V.  Marlow,  65  N.  C.  695....   268 
Mather  v.  Scoles,  35  Ind.  1 . . .  434,  477 
Matteson  v.  Scofield,  27  \Vi?c.  671. 

10,  88,  90,  92,  121,  130,  223 
-Mattingly  V.  Speak,  4  Bush.  316..   332 
Matthews  v.  Gillii^,  1  Clark,  242. ..   466 
V.  Jarrett,    20    \V.    Va. 

415 215 

V.  Patterson,  2  How.  729.  504 
V.  Terwilliger,    3   Barb. 
50..321,322,327,332,  345 
Maud  V.  Maud,  33  Ohio  St.  147  . ..  215 
Mauglin  v.  Perry,  35  Md.  352. 

236,  435,  459,  461,  549 
JMaunsell  v.  White,  1  J.  &  Lat.  567. 

98,  99 
Maw  V.  Topham,  19  Beav.  576. 

252,  506 
Mawson  v.  Fletcher,    L.   Pi,.   6  Ch. 

91 513 

Maxfield  v.  Terry,  4  Del.  Ch.  618..   431 
V.  West  (Utah),  23  Pac.  R. 

754 177 

Maxwell  v.   Pettinger,    2   Green's 

Ch.  156 433 

May  V.  Cavender  (S.  C),   7  S.   E. 

Rep.  489 223 

V.  Thompson,  20  Ch.  D.  705. 

88,  121,  124 
Mayei-   v.    Adrian,   77    N.    C.    83. 

120,  219 
Mayer's  Apjieal,  105  Pa.  St.  432. ..   186 
V.  McCreery,  119  N.  Y.  434.  124 
Mayger  v.  Cruse,  5  Mont.  485,  479. 

229,  400 
-Maynard  v.  Brown,  41  Midi.  298. .  238 

Mays  V.  Swope,  8  Gratt.  46 449 

McArthur  v.   Ashmead,    2   Brews. 

533 33 

McAskie  v.  McCay.  2  Irish  Eq.  447. 

99,  158 
McAunulty  v.  McAunulty,  120  111. 

26 158,  204 

McBumey  v.   Wilhams,   42   Barb. 

390 203 

McCabe  v.  Matthews,  40  Fed.  Rep. 

338  ....  474 

155 U.S. 550.  478 

McCaU  V.  Harrison,  1  Brock.  126..  145 


PAGE. 

McCallan  v.  Mortimer,  9  M.  &  W. 
636 366 

McCalmont  v.  Rankin,  2  De  G.  M. 

&G.  424 68 

McCann  v.  Forbes,  1  Hogan,  13. ..  497 
V.  Letcher,  8  B.  Mon.  320.  332 
V.  Nashville  St.  R'y  Co.,  2 

Tenn.  Ch.  773. 385 

McCarger  v.  Rood,  47  Cal.  138  ... .   167 
McCarter  v.  Armstrong,   32   S.  C. 

203 28,     31 

McCarthy  v.  Cooper,  12  Ont.  A.  R. 

284  

V.  Kyle,  4  Cold.  349. 

261,  275 
McCarty  v.  Meyers,  5  Hun,  83....  551 
McCaull  V.  Braham,  16  Fed.  Rep. 

37 31,     69 

McClartey  v.  Gokey,  31  Iowa,  505. 

451,  466 
McClaskey  v.  Mayor,  etc.,  64  Barb. 

310 12 

McClean  v.  NichoUs,  4  L.  T,  (N.  S.) 

863 124 

McClellan  v.  Darrah,  50  111.  249. 

178,  351,  431,  474 
McClintock  v.  Laing,  22  Mich.  212. 

10,  223,  226,  479 
McCloskey  v.   McCormick,    44  111. 

336 332 

McClure   v.   Fairfield.    153  Pa.  St. 

411 476 

V.  Jones,  121  Pa.  St.  550. 

192,  325 

V.  McClure,   1  Barr.  374. 

172,  185 
V.  Otrich,   118  111.  320. 

149,  189 
McClurg's  Appeal,  58  Pa.  St.  51..  32 
McComb  V.   Wright,   4  Johns.  Ch. 

659 117,  123 

McComas  v.   Easley,  21  Gratt.  23. 

51,  55,  56,  57,  65,  330,  341,  400,  402 
McConnell  v.  Brillhart,   17  111.  354. 

106,  107,  504 
McCorckle    v.    Brown,    9    Sm.    & 
Marsh.  167....    39,  195,  196,  304, 

312,  325,  404 
McCormack  v.  Sage,  87  111.  484.. .  223 
McCormick  v.  Grogan,  L.  R.  4  H. 

L.  82 144,  350 


TABLE    OF  CASES    CITED. 


lid 


TAGi; 

McCormick  v.  Haminersley,  1  App. 

D.  C.  313 LSf) 

V.  Malin,  5  Blackf.  609. 

271,  27 1; 
McCotter  v.  Lawrence,   G  T.  &  C. 

392 448,  47(3,  540 

McCoy  V.  Bassett,  26  "W.  Va.  570..  217 
McCrea  V.  Purmort,  16  WLMid.-4G0.  109 
McCrockUn   v.    McCrocklin,    2   B. 

Mon.  370 27 

McCue  V.  Johnson,  1  Casey,  306. 

166,  192 
McCuUoch  V.   Cowher.   5  W.  &  S. 

430 206 

V.  Dawson,  1  Ind.  413. 

390,  400,  474,  518 
V.  Greg^ory,  3  K.   &  J. 

12 289,  514 

McCiillough   V.    Eagle   Ins.  Co.,  1 

Pick.  278 9.-) 

McDavit   V.   Pierrepont,    23  N.  J. 

Eq.  42 12 

McDermid  v.  McGregor,  21  Minn. 

Ill 474,  482 

McDonald  v.  Minnick,  147  111.  651.   437 
V.  Youngbluth,  46  Fed. 

R.  836 349 

V.  Starkey,  42  111.... 442,  332 
McDougall  V.  Hall,  13  Ont.  R.  166. .  413 
McDowel  V.    Chambers,  1   Strobh. 

Eq.  347 108 

V.  Law,  35  Wise.  171 ... .  548 
McDoweU   V.    Lucas,    99   111.    489. 

167,  268 
McEldery  v.  Shipley,  2  Md.  35....  317 
McElroy  v.   Ludlum,   32  N.  J.  Eq. 

828 142 

V.  Maxwell,  101  Mo.  294.   244 
McFadden  v.  Jenkyns,  1  Ila.  462..     80 
V.  Williams,  68  Tex.  625.  474 
McFarlan    v.    Triton    Ins.    Co.,    4 

Denio,  392 76 

McFarland  v.  Hall,  3  Watts,  37 166 

McFarlane  v.  Williams,  107  111.  33. 

211,  217,  238,  314,  335,  407 
McFarson's  Appeal,  1  Jones,  503. 

113,  133,  135 
McGarvey  v.  Hall,  23  Cal.  140. .  9,  11 
McGlynn  v.  Maynz,  104  Mass.  263.  219 
McGowan  v.  Remington,  12  Pa.  St. 

56 14,  15,  19,     24 


I-AOE. 

McGowan  v.  West,  7  Mo.  569 199 

McGuire  v.  Stevens,  42  Wise.  724. 

130,  138,  223 
Mclndoe  v.  Mornian,  26  Wise.  588.  373 
Mclntire  v.  Bowiltni,   61    Me,   153. 

110.  239 
Melntyr^e  v.  Hood,  9  Can.  S.  C.  R. 

556 86 

McKay  v.  Carington,  1  McL.  51. 

415,  450,  455,  465,  478 
V.  Simpson,  6  Ired.  Eq.  452.  322 
McK<"an  v.  Reed,  6  Littell,  395. 

400,  421,  518 
McKee  v.  Phillips,  9  Watts,  85. 

145,150,  159,  166 
McKellip   V.    Mcllhenny,   4  Watts, 

317 186 

McKenew  v.  Sanderson,   L.  R.  20 

Eq.65 66 

McKenna  v.  Bolger,  49  Hun,  259. . .   168 
McKibbin  v.  Bi-own,  1  McCarter,  13. 

10,  223 

McKinnon  v.  McKinnon,  46  Fed. 

Rep.  713 268 

McKleroy  v.  Tulane,  34  Ala.  78 ... .   436 
McKnight  v.  Robbing,  1  Halst.  Ch. 

229 7,     21 

McLain  v.  School  Direct.,  51  Pa.  St. 

196 184 

McLaren  V.  Irwin,  63  Ga.  275 281 

McLarty  v.  Middleton,  9  W.  R.  861.  68 
McLaughlin  v.  Piatti,  27  Cal.  451..  13 
V.  Shields,  2  Jones,  283.  448 
McLaurinv.  Barnes,  72  111.  73....  474 
McLean  v.  NicoU,  7  H.  &  N.  1024,.  132 
McLure  v.  Tennille,  89  Ala.  572 ....  137 
McMahon  v.  Spangler,  4  Rand.  51.  322 
McManus  v.  Cooke,  35  Ch.  D.  681. .  142 
McMillin  v.  McMillin,  4  Monr.  560.  473 
McMorris  v.  Crawford,  15  Ala.  271. 

531,  546,  547 
McMullen  v.  Vanzant,  73  111.  190..  18 
McMurray  v.   Spicer,  L.  R.  5  Eq. 

527 129,  215,  216,  400,  444, 

409,  474,  475 
McMurray's  Appeal,  101  Pa.  St.  421.  253 
McMurtrie  v.  Bennette,  1   Haring. 

Ch.  124 216,  224,  229 

McNamee  v.  Withers,  37  Md.  171..     12 
McNaughtin  v.  Partridge,  11  Ohio, 

223 317,  319 


Ixii 


TABLE   OF  CASES    CITED. 


PAGE. 

McNeil  V.  Baird,  6  Mumf.  31t5 353 

V.  Jones,  21  Ark.  277 193 

V.  Ma|,^ee,  5  Mas.  245... 26,  244 
McPhevson   v.    Wiswell,    16   Nebr. 

626 82,  159 

McQueen  v.  Chouteau,  20  Mo.  222. 

537,  540 
V.  Faniuah,   11  Ves.  467. 

288,  421,  517,  520 
V.   Gilleland  (Ky.),   12  S. 

W.  1037 , 10 

McWhinne  V.  Martin,  77  Wis.  182.  167 
McWhorter  v.  McMahon,  10  Paige, 

386 109,  115 

Meach  v.  Perry,  1  Chip.  (Vt.)  189. 

136,  145 

Mead  v.  Merritt,  2  Paige,  402 10 

V.Parker,  115  Mass.  413.  131,  216 
Meadows  v.  Meadows,   2  McCord, 

458 ,    130 

V.  Tanner,  5  Madd.    54, 

356,  357 
Meason  v.  Kaine,   13  P.   F.   Smith, 

335 , 229,  325.  369 

Mechanics'  Bk.  v.  Seton,  1  Pet.  299. 

14,  19 
Meek  v.  Kettlewell,  1  Ph.  342. . .  79,  80 
Mehl  V.  Von  dev  Wulbeke,  2  Lang. 

267 223 

Meidling  v,  Trif?,  48  N.  J.  Eq.  638,  480 
Meihis  V,   Devonshire,  Dk.    of,  16 

Beav,  252 323 

Mellish  v.  Robertson,  25  Vt.  608. ..  317 
Memphis  v.  Rrown,  20  Wall,  289..  66 
Memphis,  etc.  R.  R.  v.  Scruggs,  50 

Miss.  284 26 

Mendenhall  v.  Kinck,  50  Barb.  634.  410 
Merchants'  Trading  Co.  v.  Banner, 

L.  R.  12  Eq.  18 34,  231,  384 

Mercier  V.  Mercier,  50  Geo.  546...  268 
Meredith  v.  Naish,  4  Stew.  &  Port. 

59 1.39 

Merrill  v.  Bickford,  65  Me.  118....    526 

v.  Green,  55  N.  Y.  270 549 

Merritt  v.  Brown,  21  N.  J.  Eq.  401. 
55,  206,  244,  398,  400, 

474,  478,  479 

V.  Clason,  12  Johns.  102 ... .    108 

Merry  v.  Nickalls,  20  W.  R.  929. . .     23 

Messageries     Imperiales     Co.     v. 

Baines,  11  W.  R.  322 33 


PAGE. 

Mestaer  v.   Gillesi^ie,  11  Ves.  627. 

202,  20.'> 
Metcalfv.  Hart  (Wyo.),  27  P.  900. 

225,  476 
V.  Putnam,  9  Allen,  97.  138,  344 
Metropolitan     Exhibition     Co.    v. 
Ewing,  42  Fed.  Rep.  198...,   38,  124 

Meux  V.  Hogue,  01  Cal.  442 90 

Mews  V.  Carr,  26  L.  J.  Ex.  39 118 

Meyer  v.  Andrews,  70  Tex.  327 477 

V.  Mitchell,  75  Ala.  475.  201,  215 
Meynellv.    Surteis,    3   Sm.  &   Gif. 
101 , .   66,  83,  90,  92, 145, 153,  156, 

173,  214 
Mhoon  V.  Wilkerson.  47  Misc.  633. 

434,  435 

Mialhi  v.  Lassabe,  4  Ala.  712 159 

Micholls  V.  Corbett,  3  De  G.  J.  &  S. 

18 521 

Middleton  v.  Finola,  25  Cal.  76....   286 
V.  Greenwood,  2  De  G. 

J.  &S.  142...  29,  536 
Middlesex,   etc..   Ass.    v.  Davis,  3 

Met.  133 79 

Mildway   v.   Hungerford,  2    Vem. 

243 316 

Miles  V.  Dover  Furnace  Iron  Co., 

125  N.  Y.  294 259 

V.  Erwin,  1  McCord  Ch.  524..  353 

V.  Miles,  8  W.  &  S.  136 189 

Milkman  v.  Ordway,  106  Mass.  232. 

537,  538,  539 
Millard  v.  Harvey,  34  Beav.  237...   168 
V.   Merwin,    23   N.    J.   Eq. 

417 12 

V.  Ramsdell,  Harring.  Ch. 

373 224 

Miller  V.  Ball,  64  N.  Y.  286....  172,  192 

V.  Bear,  3  Paige,  466 477 

V.  Campbell,  52Ind.  125..215,  223 
V.   Cameron,   45   N.    J.  Eq. 

95 109,  435 

V.  Chetwood,  1  Green's  Ch. 

199 301,  311,  523 

V.  Cotten,  5  Geo.  341..  ..193,  201 
V.  Florer,  15  Ohio  St.  148. ..  548 
V.  Goodwin,  8  Gray.  542. . . . 
V.  Henderson,  10  S.  &R.  290.  324 
V.   Henlan,   1   P.    F.   Smith, 

265 53,  479,  480 

V.  Hower,  2  Rawle,  53 164 


TABLE   OF  CASES   CITED. 


Ixiii 


Miller  v.  Miller,  68  Pa.  St.  486....  351 
V.  Miller,  25  N.  J.  E(i.  354..  454 
V.  Newell,  20  S.  C.  123. .   21,  369 

V.  Rice,  133  111.  315 460 

V.  Tobie,  41  N.  II.  84 179 

V.  Whittier,  32  Me.  203.  547,  549 
V.    Zufall,    113   Pa.  St.    317, 

323 :..    182 

Milligan  v.  Cook,  16  Ves.   1...505, 

506,  516 

Mills  V.  Joiner,  20  Fla.  479 162 

V.  Lockwood,  42  111.  Ill 332 

Milner  v.  Field,  5  Ex.  829 213 

Millies  V.  Gery,  14  Ves.  403.. ..   42, 

212,214,  382 
Milward  v.    Thanet    (Karl),   5  Ves. 

720 475,  492 

Mims  V.  Lockett,  33  Geo.  9..  ..166, 

167,  179,  182,  183 
Minehiu   v.    Nance,    4   Beav.    332. 

497,  499 
Mine  Hill  R.    R.  v.    Lippincott,  86 

Pa.  St.  468 254,  360 

Miners'  Ditch  Co.  v.  Zellei-bach,  37 

Cal.  543 76,     77 

Minneapolis  Mill  Co.  v.  Bassett.  31 

Minn.  390 28 

Minneapolis,  etc.,  Ry.  v.  Chisholm 

(Minn.)  57  N.  W.  Rep.  66.  ...436,  476 
Minneapolis,    etc.,   Ry.   v.  Cox,  76 

Iowa,  306 234 

Minna  v.  Chandler,  21  S.  C.  480. ..  159 
Minton  v.  Kirwood,  L.  R.  3  Ch.  604.  425 
Minturn   v.    Baylis,    33    Cal.    129. 

193.  223,  226 
V.  Seymour,  4  Johns.  Ch. 

497 79,  244 

Minus  V.  Moi-se,  15  Ohio,  568 199 

Mississippi,  etc.,  R.  R.  v.  Cromwell, 

1  Otto,  642 55 

Missouri   River,    etc.,   R.   R.    Co., 

V.  Brickley,  21  Kan.  275 462 

Mitchell  V.    Reynolds,    1    P.   Wms. 

181 362 

V.    Rome,   R.   R.  17    Geo. 

.574 76 

V.  Shell,  49  Miss.  118 551 

V.    Steinmetz,    97  Pa.  St. 

251 279,  281 

Mitford  V,  Mitford,  9  Ves.  87 406 

Mix  V.  Baldu<!,  78  111.  215 474 


Mix  V.  Beach,  46  III.  311. ..436,  477,  4SS 
Moale    V.    Buchanan,    11     Gill.    & 

Johns.  314 120,  1.53,  166,  34S 

Modisett  v.  Johnson,  2  Blackf.  431.  27t; 
Moens   v.    Ileyworth,   10  M.  &  W. 

147 295 

Mole  V.  Smith,  Jac.  490 .545 

Moliere  v.  Pcnn.  Ins.  Co.,  5  Rawle, 

347 344 

Moncrief  v.  Goldsborough,   4   liar. 

&McH.  281 358 

Money  v.  Jordan,  2  De  G.  M.  &  G. 

3.32 97,     99 

Monro  v.  Taylor,  8  Hare,  51.  ..217, 

222,  480,  496,  499 
Montacute   v.    Maxwell,  Stra.    236.     ' 
120,  130,  136,  157,  158,  197,  202, 

203,  204 
Montague   v.    frlockton,    L.    R.    16 

Eq.l89 31 

Montefiori   v.    Montetiori,    1    "Wm. 

Black.  363 97 

Monterey  County  v.Seegleken  (Cal. ) 

36Pac.  Rep.  515.. 410 

Montgomery  v.  McEwen,    7   Minn. 

351 346 

V.  Norris,  1  How.  499.  225 
V.   Reilly,    1  Bli.  (N. 

S.)  364 98 

Moody  V.  McFadden,  60  la.  601....     90 
Moon  V.  Crowder,  72  Ala.  79. . .   55,  244 

Moore  v.  Blake,  1  Ball  &  B.  62 475 

V.  BuiTOWs,  34  Barb.  173...   389 
V.  Crawford,  130  U.  S.  122..  372 

V.  Edwards,  4  Ves.  23 201 

V.    Fitz   Randolph,  6  Leigh, 

175 229,  237 

V.  Gordon,  44  Ark.  334,  341. 

173,  179,  181 

V.  Greg,  12  Jur.  952 28 

V.  Hart,  1  Vern.  110 98 

V.  Higl)ee,  45  Ind.  487.  168,  173 
V.  Middlebauni,  8  Mich.  433.  353 

V.  Murrah,  10  Ala.  573 554 

V.  Small,  19  Pa.  St.  461. 
136,  139,  145,  153,  156, 
167,  168,  169,  170,  185, 

192,  193 
V.  Tisdale,  5  B.  Mon.  352...   206 
Moorehouse  v.  Colvin,  15  Beav.  :J41. 

99.  269 


Ixiv 


TABLE   OF  CASES   CITED. 


PAGE. 

Moote   V.    Scriven,    33    Mich.    500. 

105,  173,  447,  474,  482 
More  V.  Morecomb,  Cro.  Eliz.  864..  377 
V.  Sniedburg-h,  8  Paig-e,   600. 

115,  240 
Morehead  v.  Hunt,  1  Dev.  Eq..35,  358 
Moreland  v.  Atchison,  19  Tex.  303. 

320,  321 
V.  Lemasters,    4    Blackf. 

383 166,  179 

Morg-an  v.  Bell,  3  Wash.  St.  554. ..  537 
V.  Bergen,  3  Neb.  209.  129, 

137,  148,  154,  444,  462,  474 

V.  Birnie,  9  Bing.  672 213 

V.  Gurley,  1  Ir.  Ch.  482...  469 
V.  Hai-dy,  16  Nebr.  427. ..   244 

V,  Herrick,  21  111.  481 466 

V.  Holford,   1  Sm.    &   Gif. 

101 238 

V.  Milman,  3  De  G.  M.  &  G. 

36 43,  66,  151,  213 

V.  Morgan,   2  Wheat.   290. 

278,  417,  545,  554 
V.  Rhodes,  1  My.  &  K.  435.  549 
V.  Scott,  2  Casey,  51...  261, 

448,  449 
V.  Stearns,  40  Cal.  434  ... .   434 
Morganthan  v.  White,  1  Sweeney, 

395 55,256,  315 

Morin  v.  Mai-tz,  13  Minn.  191.  109,  179 
Morison  v.  Tumour,  18  Ves.  175. . .   106 
Morley  v.  Cook,  2  Hare,  111..  441,  514 
Morphett  v.  Jones,  ISw.  181..  145, 
153, 155, 156,  164,  165.  173, 174,  176 

Morrill  v.  Aden,  19  Vt.  505 396 

Morris  v.  Debenham,    L.  R.  2  Ch. 

D.  .540 424 

V.  Harris.  9  Gill.  19 164 

V.  Hoyt,  11  Mich.  9...   435, 

467,  488,  546,  553 
V.  Peckham,  51  Conn.  128..  369 
V.  Remington,  1   Pars.    Eq. 

387 10 

V.  Stephenson,  7  Ves.  474. 

374,  525 
Morris  &  Essex  R.  R.  v.  Sussex  R. 

R.,  5  C.  E.  Green,  542..     76 
Morrison  v.  Arnold,  19  Ves.  670. ..   289 
V.  Barrow,  1  De  G.  F.  &  J. 

633 223,  384 

V.  Herrick,  130  111.  631  . .   176 


PAGE. 

Morrison  v.  Lods,  39  Cal.  381.  290,  310 
V.  McLeod,  2  Dev.  &  Bat. 

Eq.  221  257 

V.  Peay,  21  Ark.  110 174 

V.  Wurtz,  7  Watts,  4.37. . .  393 
Morrow  v.  Lawrence,  7  Wise.  574.  553 
Morse  v.  Merest,    6  Mad.  26.    212, 

458,  477 

V.  Seibold,  147  111.  318 474 

Morss  V.  Elmendorf,  11  Paige,  277. 

502,  504,  529,  537,  538,  540 
Mortimer  v.  Bell,   L.  R.  1  Ch.  10. 

61,  356 
V.  Capper,    1   Bro.   C.  C. 

156 275,  396 

V.  CornweU,    1  HoflF.  Ch. 

351 115 

V.  Orchard,   2   Ves.    243. 

179,  192,  193,  198 
V.  Pritchard,  1  Bailey  Eq. 

505 329 

V.  Shortall,   2   Di-.   &  W. 

303 333 

Mortlock  V.   Duller,    10   Ves.    305. 
39,  115,  242,  252,  253,  255,  414, 

504,  505,  508.  517,  525 
Morton  v.  Dean,  13  Met.  388..   120, 

123,  133 
Morton  Brewing  Co.  v.  Morton,  47 

N.  J.  Eq.  158 186 

Mosby  V.  Wall,  23  Miss.  81 332 

Mosely  v.  Boush,  4  Rand.  392 66 

V.  Virgin,  3  Ves.  184....  28,  384 
Moser  v.  Cochrane,   107   N.  Y.    35. 

282,  286 
V.  Libenguth,  2  Rawle,  428.  319 
Moses  V.  McClain,  82  Ala.  370.  109, 

238,  375 

Moss  V.  Atkinson,   44  Cal.  3 131 

V.  Bainbrigge,  18  Beav.  478..   547 
V.  Barton,   L.    R.    7  Eq.  474. 

10,  236,  445,  477 

V.  Culver,  46  Pa.  St.  414 167 

Mott  V.  Mott,  68  N.  Y.  246 425 

Moulton  V.  Chaffee.    22   Fed.    Rep. 

26 545 

V.  Harris,  94  Cal.  420 167 

Mowers  v.  Fogg,  45  N.  J.  Eq.  120.  383 
Moxey  v.  Bigwood,  12  W.  R.  811...  329 
Moxhay  v.  Inderwick,   1  De  G.   & 
Sim.  708 266 


TABLE    OF  CASES   CITED. 


Ixv 


I'AGK. 

Moyer  v.  Hinman,  13  N.  Y.  180. ..   389 
Moyer's  Appeal,    105    Pa.    St.   4;5i2, 

437 102,  207,  219 

Moyses  v.  Little,  2  Vern.  194 540 

Mudgett  V.  Clay,  5  Wa^sh.   St.    103. 

194,  470.  476 
Mulling^  V.  Trinder,  L.  R.   10  Eq. 

449.  ..  283,  378 

Mullinsv.  Hussey,  12  Jur.  (N.  S.) 

636 373 

Mundorff  v.  Howard,  4   Md.    459. 

154,  156,  178 
Mundy  v.  Jolliffe,  5  My.  &  Cr.  177. 
40,  145,  146,  166,  172,  175,  179, 

194,  195,  432 
Munli  V.  Weidner  (Tex.  Civ.  App.), 

29  S.  W.  409 170 

Munro  v.  Wivenhoe,   etc.  R'y  Co., 

4  De  G.  J.  &  S.  729  384 

Munsell  v.  Loree,  21  Mich.   491. 

223,  226 
Murphy  v.  Clark,  1  Sm.  &  Marsh. 

221 17 

V.  Hubert,  4  Harris,  50. ..  203 
V.  Lockwood,  21  III.  611..  467 
V.  Marland,  8  Cush.  575..  237 
V.  Rooney,  45  Cal.  78. 

79,  331,  345,  348 
V.  Stever,  47  Mich.  522. 

169,  192 
V.  Whitney,  69  Hun,  573..   189 
MuiTay  V.  Ballou,  1  Johns.  Ch.  566.  389 
V.  Dake,  46  Cal.  644. 

324,  345,  349 
V.  Ellis,  112  Pa.  St.  485. 

282,  284,  286 

V.  Jayne,  8  Barb.  612 164 

V.  Parker,  19  Beav.  805. 

331,  334 
Murrell  v.  Goodyear,  1  De  G.  F.  & 

J.  432 240,  423,  490 

Musselman's  Appeal,  15  P.F.  Smith, 

480 449 

Myer  v.  Lowell,  44  Mo.  328 548 

Myers  v.  Byerly,  45  Pa.  St.  368. . .   177 
V.  Croswell,  45  Ohio  St.  543. 

171,  172,  173 
V.    Forbes,    24    Md.    598. 

10,  223 
V.  League  (C.  C.  A.),  82 Fed. 

Rep.  654 455 


I'AtiE. 

Myers  v.    Watson,    1  Sim.  (N.  S.) 

.523  408 

Myres  v.  De  Mier,  4  Daly,  343....     10 


N. 

Nace  V.  Boyer,  6  Casey,  99 258 

Nagle  V.  Baylor,  3  Dr.  &  W.  60...   257 
V.  Newton.  22  Gratt.  814. 

504,  518 
Nally  V.  Reading  (Mo.)  17  S.  W.  978.  139 
Nan  V.  Jackman,  58  Iowa,  359 ....  159 
Napier  v.    Darlington,    20    P.    F. 

Smith,  64 236,  419,  504,  505,  519 

National,  etc.  Building  Soc,  In  re, 

L.  R.  5Ch.  309 78 

National  Exchange  Co.  v.  Drew.  2 

McQueen,  103 293,  296,  358,  359 

Nay  V.  Mograin,  24  Kan.  75 173 

Naylor   v.   Winch,    1    Sim.  &  Stu. 

555 320,  321 

Neal  V.  Gregory,  19  Fla.  356 159 

V.  Speigler,  33  Ark.  63 20 

Neale  v.  McKenzie,  1  Ke.  474. 

243,  252,  407,  506 
V.  Neales,  9  Wall.  1....    143, 
167,  171,  184,  185,  186, 

187,  189,  198 

Neel  V.  Neel  80  Va.  584 163,  268 

Nelson  v.  Bevins,  14  Neb.  153  ....  10 
V.  Bridges,  2  Beav.  239. ...  524 
V.  Hagerstown  Bk.,  27  Md. 

51 474,  479 

V.  Kelly  (Ala.),  8  So.  Rep. 

690 223,  266 

V.  Worrall,  20  Iowa,  469...   206 
Nelthorpe  v.  Holgate,  1  Coll.  203. 

419,  504,  505,  513,  519,  545.  546 
Nene  Valley,  etc.  Com.  v.  Dunkley, 

L.  R.  4  Ch.  D.  1 132,  216,  408 

Nesbitt  V.  Meyer,  1  Sw.  226..  369,  399 
Nesham  v.  Selby,  L.  R.  7  Ch.  406. 

121,  217 
Neufville<K^.  Stuart,  1  Hill  Ch.  159.  223 
Neville  v.  Merchants'  Ins.  Co.,   19 

Ohio,  4.52 10,     21 

v.  Rentzell,  39  Ark.  289. . .   550 
V.  Wilkinson,  1  Bro.  C.  C. 

543 ^"t 

Nevitt  V.  Gillespie.  1  How.  (Miss.) 
108 11 


Ixvi 


TABLE   OF  CASES    CITED. 


Nevins  v.  Dunlap,  33  N.  Y.  676. 

332,  345 
Newark  Sav.  Inst.  v.  Jones,  37  N. 

J.  Eq.  449....  219,  220,  221,  420,  437 
New  Brunswick,  etc.  Co.  v.  Mug- 

geridg-e,  4  Drew.  686 23 

Newberger  v.  Adams,  92  Ky.  27..  138 
Newberry  v.  James,  2  Mer.  446.  32,  379 
V.  Slafter,  98  Mich.  468.  416 
Newcastle,  Duchess  of,  v.  Pelham, 

3Bro.  P.  C.  460 18 

New  England  Ti-ust  Co.  v.  Abbott 

(Mass.)  38  N.  E.  432 24 

Newell  V.  Newell,  13  Vt.  24 139 

V.  Radford,   L.  R.  3  C.  P. 

52 127,  129 

V.  West,  13  Blatch.  114 ... .  25 
Newell's  Appeal,  100  Pa.  St.  513..  238 
Newkirk  v.  Marshall,  35  Kan.  77, 

82,  84 185 

Newman   v.   Meek,  1  Freem.   Ch. 

441 271 

V.  Rogers,  4  Bro.  C.  C. 

391 455 

Newnham  v.  Graves,  1  Madd.  399.     68 
Newsome  v.  Bufferlow,  1  Dev.  Eq. 

383 345 

Newton  v.  Swazey,  8  N.  H.  9. 

136.  166,  179,  192,  199,  200,  554 
N.  Y.  F'mn's  Ins.  Co.  v.  Ely,  2  Cow. 

699 76 

V.  Sturgess,  2 
Cow.  675.     76 
N.  Y.  Ice  Co.  V.  N.  W.  Ins.  Co.,  23 

N.  Y.  357  346 

New  York,  etc.  R'y  Co.  v.  Stanley, 

35N.  J.  Eq.  283 504 

Nibert  v.   Baghurst,  47  N.  J.  Eq. 

201 120,  145,  1.50,  158,  159 

Nichol  V.  Ridley,  5  Yerg.  63 123 

Nicholl  V.  Jones,  L.  R.  3  Eq.  696. 

373,  526 
Nichols  V.  Johnson,  10  Conn.  198. 

120.  126,  130 
V.  Marsh,  61  Mich.  509  ....  25 
V.  Williams,  7  C.  E.  Green, 

63 218,  223,  226 

Nicholson  V.  Condon,  71  Md.  620..  288 
V.  Smith,   22  Ch.  D.  640.  444 
Nickels  v.  Hancock,  7  De  G.  M.  & 
G.  300 26,  261 


PAGE. 

Nickelson  v.  Wilson,  60  N.  Y.  362 

361,  362 
NicoU  V.  Chambers,  11  C   B.  996..   512 
V.  N.  Y.  &  Erie  R.  R.,  12  N. 

Y.  121 414 

Niles  V.  Davis,  60  Miss.  750 138 

Nimma  v,  Vaughan,  40  Mich.  356..     20 

Noble  V-  Moses,  8  Ala.  530 251 

Noel  V.  Drake,  28  Kan.  265 360 

Nokes  V.  Kilniorey  (Lord),  1  De  G. 

&  S.  444.... 462,  469,  470 

Noonan  v.  Orton,  21  Wise.  283,  347.  430 
Norfieet  v.  Southall,  3  Murph.  189.  213 
Norfolk  (Dk.  of)  v.  Worthy.  1  Camp. 

Ca.  337 427,  522,  523 

Norman  v.  Bennett,  32  W.  Va.  614.  476 

Norris  v.  Fox,  45  Fed.  Rep.  406. ..   415 

V.  Jackson,  1  J.  &  H.  319. 

28,  179,  536 
V.  Knox,  1  Pittsb.  56. ..  474, 

478,  479,  480 
North  v.  Ansell,  2  P.  Wms.  618 ... .   405 

v.  Forest,  15  Conn.  400 153 

North  Brit.  R'y  Co.  v.  Tod,  12  CI. 

&Fin.  722 409 

Northern    Trust    Co.    v.     Markell 

(Minn.),  63  N.  W.  735 24 

Northrup  v.  Boone,  66  111.  868.  137,  167 

Norton  v.  Mascall,  2  Vem.  24 26 

V.  Preston,  15  Me.  14 139 

V.  Serle,  Finch.  149 67 

V.  Wood,  1  R.  &  Myl.  178. .     99 
Notson  V.  Barrett,  1  Greenl.  302.  ..  462 

Nott  V.  Riccard,  22  Beav.  307 469 

Noyes  v.    Johnson,  139  Mass.  436. 

219,  286 

Nunez  v.  Morgan,  77  Cal.  427 199 

Nunn  V.  Fabian,  L.  R.  1  Ch.  35 . . . .   174 
V.   Truscott,  3  De  G.   &  Sm. 

304 429 

Nurse  v.  Seymour  (Lord),  13  Beav. 

254 409 

Nutbrown  v.   Thornton,   10  Ves. 

161 13,14,  15,     22 


O. 

Oakden  v.  Pike,  34  L.  J.   Ch.  (N. 
S.)620 462 

Oakey  v.  Cook,  41  N.  J.  Eq.  350. 

218,  219,  281,  433,  469,  489 


TABLE    OF   CASKS    CITED. 


Ixvii 


I'AGK. 

O'Connor    v.    Hughes,     3?     Minn. 

446,  453 467 

0  Jell  V.  Morin.  5  Oreg.  96 223 

O'Donnell  v.  Leman,   43   Me.    158. 

120,  132 
O'Fallon  v.  Kcnuci-ly,  45  Mo.  124. 

462,  465,  478,  47'.i 
Og-den  V.  Fossick,   4  De  G.  F.  Si.  J. 

426 402 

V.  Ogden,  4  Ohio  St.  182  ... .      10 
Oyilvie   v.    Foljambe,   3    Mer.    53. 

106,  124,  215,  221 
Ogsbuiy  V.  Ogsbury,  115  N.  Y.  290.  186 
O'Herlihy  v.  Hedges,  1  Sch.  &  Lef. 

123 138,  159,  160 

Ohio  V.  Baum,  6  Ham.  383 258 

O'Kane  v.  Kiser,  25  Ind.  168..  390, 

400,  474.  518 
Okell  V.  Whittaker.  1  De  G.  &  Sm. 

83 323 

Old  Colony  R.   R.   Co.   v.   Evans,  6 

Gray,  25 6,  7,  11,  109,  111, 

112,  232,  237,  335,  416,  489,  490 
Oldfield  V.  Roand,  5  Yes.  508..  420,  508 
Oldham  v.  Litchfield,  2  Yern.  506..   205 

Olin  V.  Bates,  98  111.  53 360 

Oliver  V.  Croswell,  42  111.  41 532 

V.  Hunting,  44  Ch.  D.  205..   120 

V.  Oliver,  4  Rawle,  141 324 

Ollsey   v.    Fisher,    34   Ch.   D.   367. 

137,  142,  343 
Olmsteadv.  Abbott,  61  Yt.  281.  186,  223 

Olney  v.  Eaton,  66  Mo.  563 10 

Olsen  V.  Lovell,  91  Cal.  506 374 

O'Meara  v.  W.  Am.  Ins.  Co.,  2  Nev. 

112 540 

Omerod  v.  Hardman,  5  Yes.  737...  485 
Omnium  Securities  Co.  Richardson, 

70nt.  R.182 90 

Onslow  V.  Loudseborough  (Ld.),  10 

Hare,  67 406 

Onson  v.  Cown,  22  \Visc.  329 347 

Ord  V.  Johnston,  1  Jur.  (N.  S.)  1063. 

3,  8,  66,  79,  231 

V.  Noel,  5   Mad.  438 252 

Oregonian  R.  Co.  v.  O.  R.  &  N.  Co., 

37  Fed.  Rep.  733 28 

O'Reilly  v.   Thompson,  2  Cox,  271. 

139,  153,  158,  161,  191 
Oiiental  Inl.  Steam  Co.   v.  Briggs, 
2  J.  &  H.  625 23 


Ormond  (Lil.)  v.  Anderson,  2  Ball  & 

B.  373 109,  21S,  238 

O.sbaldiston  v.  Askew,  2  Jur.  &  W. 

539 51«,  520 

Osborn  v.   Brcmar,    1  Dessau.   486. 

426,  475,  521 

v'.  Harvey.  7  Jur.  229 440 

V.  Phelps,  19  Conn.  74.  153,  349 
Osborne   v.    Kimball,  41    Kan.  1S7, 

190 142 

Osgood  v.  Franklin,  2  Johns.  Ch. 

23 244.  271,  276 

O'SuUivan  v.  Overton,  56  Conn.  102.  129 
Otis   v.    PajTie,   2    Pickle   (Tenn.), 

663 95,  121 

Ottinhouse  v.  Burleson,  11  Tex.  87. 

167,  179 
Ottumna  &  W.  R.  v.  McWilliams, 

71  la.  164 215 

Otway  V.  Braithwaite,  Finch,  405..  235 
Overly  v.  Thrasher.  47  Geo.  10 ... .  26 
Owen  V.  Davies,  1  Yes.   Sen.  82. 

159,  496,  497 
V.  Frink,  24  Cal.  171. ..   546,  549 

V.  Owen.  5  Humph.  352 394 

V.  Thomas,  3  My.  &  K.  353. 

121,  217,  222 
Owings  V.  Baldwin,  8   Gill.  337. 

154,  164,  192,  278,  437 
Oxford  V.  Provaud,  L.  R.   2   P.    C. 

135 194,  2.")9,  402 

Oxford  Iron  Co.  v.  Spradley,  46  Ala. 
98 76 


Pacific  R.  M.  Co.  v.  R'y  Co.,  90  Cal. 

627 82,  88,  122 

Packer  v.  Parmelee,  20  Johns.  130.   437 
Paddock  v.  Davenpoi-t,   107  N.   C. 

710 13 

Page  V.  Adam,  4  Beav.  269 513 

v.  Broom,  3  Beav.  36 406 

v.  Greeley,  75  111.  400...  218, 

219,  422,  449,  487 
Page  Co.  V.  American,  etc.,  Co.,  41 

Iowa,  115 12 

Pain  V.  Coombs,  1    De    G.  &  J.    34. 

164,  169,  174,  370.  430,  431 
Paine  v.  Hutchinson,  L.  R.  3  Ch.  38S.     23 
V.Miller,  6  Yes.    349....  393, 

396,  398,  484,  487.  492 


Ixviii 


TABLE   OF  CASES   CITED. 


PAGE. 

Painter  v.  Newby,  11  Hare,  26.507,  513 
Palmer  v.  Gould  (N.  Y.),  39   N.  E. 

R.  378 229,  506 

V.  Graham,  1  Pars.  Eq.  476.     45 
V.  Morrison,  104  N.  Y.  132.  279 
285,  421 
V.  Scott,  1   R.    &   My.  391. 

94,  109,  235,  383 
V.  Temple,  9  A.  &  E.  508..  390 
Palmerston     (Ld.)    v.    Turner,    33 

Beav.  524 498 

Palo  Alto,  The,  Davies,  344 96 

Pankerv.  McAllister,  14  Ind.  12..   437 
Papillon  V.  Voice,  2  P.  Wms.  478..     18 

Papin  V.  Massey,  27  Mo.  445 391 

Paramore  v.  Greenslade,  1    Sm.   & 

Gif.541 394 

Parham  v.  Parham,  6  Humph.  287. 

317,  332 
Park  V.  Johnson,  4  Allen,  259., 329,  435 
Paris  Cho2.  Co.  v.  Crystal  Pal.  Co., 

3  Sm.  &  Gif.  119 214,"  225 

Parish  v.  Koonz,  1  Pars.  Eq.  Cas., 

79 109,113,  226,  340 

Park  V.  Johnson,  4  Allen,  259 337 

Parke  v.  Leewright,  20  Mo.  85 159 

Parken  v.  Whitby,   T.  &  R.  366...   365 

Parker  v.  Bodley,  4  Bibb.  102 135 

V.  Frith,  1  S.  &  S.  199 457 

V.  Garrison,  61  111.  250 33 

V.  Palmer,  1  Cas.  in  Ch.  42. .   248 
V.  Perkins,  8  Cush.  318 ... .    237 

V.  Serjeant,  Finch,  146 94 

V.  Smith,   1  Coll.  C.  C.  624. 
153,  157,  158,  163,  177, 

190,  191 
V.  Taswell,   4   Jur.    (N.   S.) 

183 225 

V.  Wells,  6  Whart.  153 159 

V.  Wray,  45   Fed.  Rep.  716, 

721 57 

parkhurst  v.  Van  Courtland,  1 
Johns.  Ch.  273....  120,  121,  122, 
136,  139,  140,  145,  146,  150,  153, 
166,  479,  183,  192,  194,   196,  226, 

227,  237,  540 
Parkin,  In  re  [1892],  3   Ch.  510....   268 
V.    Thorold,   16   Beav.  67. 
284,  402,  444,  562,  466,  468,  469, 

482,  487,  492 
Parks  V.  Laroche,  15  Bradw.  354. .   219 


PAGE. 

Pan-ill  V.  McKinley,  9  Gratt.  189 

Parry  v.  Tobacco  Ins.  Co.,  1    Cinn. 

Sup.  Ct.  251 238 

Parsons  v.  Gilbert,  45  Iowa,  33  ....  286 
Parteriche  v.  Powlet,  2  Atk.  383...  325 
Paschall  v.  Passmore,  3  Harris,  295. 

412,  453 
Pasley  v.  Martin,  5  Rich.  Eq.  351.     17 

Paton  V.  Brebner,  1  Blig-h.  68 516 

V.  Stewart,  78  111.  481 360 

Patterson  v.  Cunningham,  2   Fairf. 

512 138 

V.  Horn,  1   Grant,  301...   207 
V.  Long,    5     Beav.    186. 

545,  546 
V.  Martz,   8   Watts,   374. 

261,  479 
V.  Ware,  10  Ala.  446.  199,  201 
Patrick  v.  Sears,  19  Fla.  856..  215,  223 
Pattison  v.  Skillman,  34   N.   J.  Eq. 

345 18,     20 

Pattle  v.  Anstruther,  4  Reports,  470, 
69  Law  J.   174,  41  Weekly  Rep. 

625 126 

Patton  V.    McClure,    Mart.    Yerg. 

333   138 

Paulman  V.  Cheney,  18  Nebr.  392.  488 
Paulraier  v.  Howland,  49  N.  J.  Eq. 

364 284 

Pawlak  V.    Granowski  (Minn.),  55, 

N.  W.   831 192 

Paxton  V.  Newton,  2   Sm.   &   GifF. 

437 28,  375,  384 

Payne  v.  Banner,  15  L.  J.  Ch.  227.  458 
V.  Mortimer,  1  Giff.  118....  98 
V.  Still,  38  Pac.  Rep.  (Wash.) 

994 10 

Payson  v.  West,  1  Walk.  515 139 

Peabody  v.  Tarbell,  2  Cush.  226 . .  540 
Peabody   Heights    Co.    v.    Willson 

(Md.),  32  Atl.  Rep.  385 419 

Peacock  v.  Deweese,  73  Ga.  570. ..  238 
V.  Monk,  1  Ves.  Sen.  133.  80 
V.  Penson,  11   Beav.   355. 

266,  409,  507,  545 

Peak,  exjmrte,  1  Mad.  346 248 

Pearce  v.  Watts,  L.  R.  20   Eq.  492.  223 

Pearis  v.  Covilland,  6  Cal.  617 474 

Pearne  V.  Lesle,  Amb.  77 14,     15 

Peck  v.  Brighton,  69  111.  200. 

452,  462,  474 


TABLE    OF  CASES   CITED. 


Ixix 


PAGE. 

Peck  V.  Levinger,  (i  Dak.  54 223 

V.  Stanfield  (Wash.),  40    Pac. 

R.  635 173 

V.  Williams,  113  Iiid.  250....    170 
Peckham  v.  Balch,  49  Mich.  179. ..   170 
V.    Barker,  8    R.   I.    17. 
136,   153,   156,   167, 

173,  174,  182 

Peele,  ex  jHtrte,  6  Ves.    602 547 

Peeler  v.  Levy,  26   N.   J.  Eq.  330. 

373,  508,  528,  529 
Peeney  V.  Houghton  (Miss.),  17  So. 

Rep.  378 109 

Peers   v.   Lambert,    7    Beav.    546. 

422,  518,  520 

V.  Sneyd,  17  Beav.  151 491 

Pegg  V.  Wisden,  16  Beav.  239.  469.  487 

Pegler  v.  White,  33  Beav.  403 284 

Peifer  v.  Landis,  1  Watts,  392 166 

Pember  v.  Mathers,    1    Bro.   C.  C. 

52  203,  343 

Pembroke  v.  Thorpe,    3   Sw.    537. 

140,  157,  263 
Pendleton  v.  Dalton,  Phill.  Eq.  119.  315 
Pengall  (Lord)  v.  Ross,  2  Eq.  Cas. 

Abr.46 159,  160,  183 

Penn  v.   Baltimore   (Lord),  1   Ves. 

Sen.  444 10,     80 

v.  Hayward,  14  Ohio  St.  302,     10 
V.  McCuUough  (Md.),  24  Atl. 

Rep.  424 400 

Penniman   v.   Hartshorn,  13  Mass. 

87 106 

Pennsylvania  &   N.    E.   R.  Co.  v. 

Ryerson,  36  N.  J.  Eq.  112.    547 

Pennsylvania  Co.    v.  St.  Louis,  A. 
&  T.  H.  R.  Co.,  118  U.  S.  290. 

21,  31,  34 
Penny  v.  Martin,  4  Johns.  Ch.  566..  323 
Pensacola  Gas  Co.  v.  Pensacola,  33 

Fla.  322 400 

People  v.  Open  Board,  etc.,  Co.,  92 

N.  Y.  98 489 

V.  People  v.  Utica  Ins.  Co., 

15  Johns.  358 76 

Perin  v.  Megil)ben,   40  Fed.   Rep., 
133;  53  Fed.  Rep.,  86;  3  C.  C.  A. 

443 24 

Pei-kins  v.  Dickinson,  3  Gratt.  335.  332 
V.  Ede,  16  Beav.   193. 

422,  518,  520 


I'AGi:. 
Perkins  v.  Hadsell,  50  111.  217. 

109,  235,  236,  460,  549 

V.Thornton,  Ambl.  .502...  405 

Perry  v.  Pearson,  1  Humph.  431...  :{I4 
Peru  Iron  Co.,  ex  parte,  7  Cow.  540. 

76.  93 

Peler  v. 'Nicholls,  L.  R.  11  Etp  391.  AlW 

V.  Wright,  6  Ind.  183 321 

Pet.M-s  V.  Delaplaine,  49  N.  V.  362. 

474,  478,  479,  480,  481 
V.  Dickinson  (N.  II.),  32  Atl. 

Rep.  154 161 

V.    Jones,    35   Iowa,    512. 

550,  556 

Petersburg  v.  Metzker,  21  111.  205..  76 

Peterson  v.  Gi-over,  20  Me.  363....  314 
Peto  v.  Brighton,  etc.,  R'y   Co.,    1 

H.  &M.468 384 

Petre  v.  Duncombe,  7  Hare,  24....  545 
Petrick  v.    Ashcroft,    4   Green  Ch. 

339 192 

Pettes  V.  Bk.  of  Whitehall,  17  Yt. 

434 317 

Pettibone  v.  Moore,  75  Hun,  461. . .  Ill 

Petty  V.  Malier,  15  B.  Mon.  604.. ..  347 
Pflugar  V.  Pultz,  43  N.  J.  Eq.  440. 

190,  268 
Phelps  V.  111.  Cent.  R.  R..  63  111.  468. 

434,  452,  462,  467,  468,  479 

Phillips  V.  Adams,  70  Ala.,  373 135 

V.  Berger,  8  Barb.  528. 

6,  11,  13,  21,  229,  239 

V.  Day,  82Cal.  24 279 

V.  Edwards,  33  Beav.  440. 

139,  157 

V.  Everard,  5  Sim.  102 406 

V.  Gorham,  17  N.  Y.  270..  346 
v.  Gt.  West.  R'y  Co.,  L.  R. 

7  Ch.  409 33 

V.  Hollister,  2Coldw..  269.  321 
V.  Homfray,    L.    R.    6  Ch. 

770 61,  3.54,  514 

V.  Hooker,  Phil.  Va\.  193..  130 

V.  MiuingCo.,  7rhila.  619.  238 

V.  Soule,  9  Gi-ay,  233 28 

V.  Swank,  120   Pa.   St.  76. 

122,  215 

V.   Sylvester,   L.  R.  8  Ch. 

173.... 389,  496,  499 
V.  Stanch,  20  Mich.  369. 

5.5.  371.  526.  528 


Ixx 


TABLE    OF   CASKS    CITED. 


PAGE. 

Phillips  V.  Thompson,  1  Johns.  Ch. 
131..  40,  44,  149,  152, 
153, 154,  156, 192,  340,  540 
V.  Van  Schaick,   37  Iowa, 

229 549 

Phillipson  v.   Gibbon,   L.  R.  6  Ch. 

426 425,  489,  491 

Philpott  V.   Elliott.  4  Md.  Ch.  273. 

196,  333,  345,  348 
Pbippen  v.  Stickney,  3  Mete.  384..  358 
Phipps  V.  Munson,  50  Conn.  267. . .  462 
Phoenix  Ins.  Co.  v.  Ryland,  69  Md. 

437   21 

Phyfe  V.  Wai-dell,  2  Edw.  Ch.  47. 

11,  196,  348 

Physician's  Case,  1  Ventr.  6 548 

Piatt  V.  Oliver,    1    McLane,    295. 

358,  362 
Pickering  v.  Bishop  of  Ely,  2  Y.  & 
C.  C.  C.  249....  67, 

231,  383 
V.  Pickering-,  2  Beav.  56. 

245,   247 
38    N.    H. 
400....   455 
Pierce  v.  Catron,  23  Gratt.  483. 

137,  148,  154,  223 

V.  Fuller,  8  Mass.  223 362 

V.  Nichols,  1  Paig-e,  244....    392 
V.  Paine's  Estate,  28  Vt.  34.,  141 

V.  Plumb,  74  111.  326 21 

Piersoll  v.  Neill,  63  Pa.  St.  420. .. .  431 
Pierson  v.  Ballard,  32  Minn.  263..  215 

Pigg  V.  Corder,  12  Leigh,  69 479 

Pike  V.  Morey,  32  "Vt.  37 139 

V.  Pettus,71Ala.  98..153,173,  193 
Pilling   V.    Armitage,    12   Ves.   78. 

192,  341 
Pillow  V.  Pillow,  3  Humph.  644. 

455,  479 
Pinckard  v.  Pinckard,  23  Ala.  649. 

167,  184,  185 
Pincke  v.  Curteis,  4  Bro.  C.  C.  329. 

444,  484,  487,  492 
Pinckney  v.  Hagadorn,  1  Duer,  90.  444 
Pingree  v.  Coffin,  12  Gray,  288. 

10,  360,  504,  540 
Pinner  v.  Sharp,  23  N.  J.  E(i.  274. 

12,  61 
Pipkin  V.  James,  1  Humph.  325. 

130,  415,  489 


PAGE. 

Pitcairn  \-.   Ogboui-ne,  2  Ves.  Sen. 

375  323,333,  343 

Pitenger  v.  Pitenger,  2  Green  Ch. 

156 258 

Pitkin  V.  Pitkin,  7  Conn.  315 66 

Pitt  V.  Moore,  99  N.  C.  85 135 

Pitts  V.  Beckett,  13  M.  &  W.  743..  108 
Playford  v.  Playford,  4  Hare,  546. 

268,  276 
Pleasanton  v.  Raughley,  3  Del.  Ch. 

124 166 

Pledger  v.  Garrison,  42  Ark.  246..   164 
Plum   V.   Mitchell  (Ky.),  26  S.  W. 

Rep.  391 527 

Plummer  v.   Kepler,  26   N.   J.    Eip 

481 55,  290,  310 

V.  Owen,  1  Busbe  Eq.  254,  138 
Plunkett   V.    Meth.    Epis.    Soc,    3 

Cush.  561 237 

Poag  V.  Sandifer,  5  Rich.   E<|.  170. 

165,  173 
Podmore  v.  Gunning,  7  Sim.  644..  205 
Poland  V.  O'Connor,  1  Neh.  50....  167 
Polhill  V.  Walter,  3  B.   &  Ad.  114. 

292,  310 
Pollard  V.  Clayton,  1  K.    &  J.  462. 

20,  28,  384,  458 

V.  Rogei-s,  4  Cal.  439 353 

Pollexfen  v.  Moore,  3  Atk.  273 ... .   388 
Pollock  V.  Brainerd,  26  Fed.   Rep. 

732 433 

Pomeroy  v.  Benton,  77  Mo.  64 

Ponce  V.  McWhorter,  50  Tex.  562. 

145,  201 

Pond  V.  Sheehan,  132  111.  312 162 

Poole  V.  Hill,  6  M.  &  W.  835 403 

V.  Middleton,  29  Beav.  646..     22 
V.  Shergold,  2  Bro.  C.  C.  118, 

425,  499,  521 

Pooley  V.  Budd,  14  Beav.  34 19 

Poorman  v.  Kilgore,   2  Casey,  365. 

139,  166,  173 

Pope  V.   Garland,   4   Y.  &  C.   Ex. 

394 305,  308,  508 

V.  Harris,  Lofft,  791 259 

V.  Henry,  24  Vt.  560 186 

V.  Roots,  1  Bro.  P.  C.  370. ..  399 

V.  Simpson,  5  Ves.  145 480 

Pope  Mannf.    Co.  v.   GormuUy,  34 

Fed.  Rep.  877 251 

Popham  V.  Eyre,  Lofft,  786 ... .  157,  458 


TABLE    OF   CASES    CITED. 


Ixxi 


Popplein  V.  Foley,  01  Mil.  381 314 

Port  Clinton  R.  R.  v.  Cleveland,  eti;. 
R.  R.,  13  Ohio  St.    544..   28,  54, 

55,  57,  C5,  384 

Porter  v.  Allen,  54  Geo.  G23 12 

V.  Doug-herty,  1  Casey,  405. 

261,  479,  480 
V.    Frenchman's    Bay,    etc. 

Co.,  84  Me.  195 7 

V.  Noyes,  2  Greenl.  22 437 

V.  Woodruff,  30  N.    J.    E(i. 

174 353 

Portland,  etc.  R.  R.  v.  Grand  Trunk 

R.  R.,  63  Me.  99 402 

Portlaring-ton  v.  Soulby,  3  Myl.  & 

K.  104 10 

Portman  v.    Mill,  1    Russ.   &   Myl. 

690 420,  427,  428,  520,  .522 

Portmore  (Ld.)  v.  Morris,  2  Bro.  C. 

C.  209 323 

Post  V.  Leet,  8  Paige,  337 329 

Potter  V.  Brown,  50  Mich.  436 20 

V.  Conch,  141  U.  S.  296 400 

V.  Duffield,  L.  R.  18  Eq.  4. 

118,  122,  125 

V.  Ellice,  48  N.  Y.  321 554 

V.    Hollister,    45  N.   J.   Eq. 

508 10,  122 

V.Jacobs,  111  Mass.  32.  138.  167 
v.  Potter,  1  Ves.  Sen.  437. . .   200 

V.  Sanders,  6  Ha.  1 95, 

531,  553 
V.  Tuttle,  22  Conn.  512.  413, 

449,  453 
Potts  V.  Whitehead.  5  C.  E.  Green, 

55 88,210,  218,223,  459 

Powell  V.  Central  Plank  Road  Co., 

24  Ala.  441 66 

V.   Conant,    33    Mich.    390. 

278,  281 
V.  Dillon,  2  Ball  &  B.  410  . .  120 
V.  Elliott,  L.  R.  10  Ch.  424. 

296,  312,  522,  523 
V.  Higley  (Ala.),  7  So.  Rep., 

440 453 

V.  Knowler,  2  Atk.  224.  361,  366 
V.  Lloyd,  2  Y.  &  .J.  373  ... .  407 
V.  Lov^egrove,  39  Eng.  L.  & 

Eq   427 13.5,  210 

V.  Martyr,  8  Ves.  146 497 

V.  Smith,  L.  R.  14  Eq.  85  . .   317 


PAGE. 

Powell  v.  Sh.  Wales  Ry.  Co.,  1  Jar. 

(N.  S.)  773 516 

V.  Young,  45  Md.  414 553 

DuflVyn  Steam  Coal  Co.  v. 
Tall  Vale  Ry.  Co.,  L.  R. 

9  Ch.  331 384 

Power  v.  Bagley  (Wash.),  38  Pac. 

Rep.  164 402 

Posver's  Appeal.  63  Pa.  St.  443....    268 

Powers  V.  Hale.  5  Frost.  145 276 

Prater  v.  Miller,  3  Hawke.s,  028. ..   224 

V.  Scare,  77  Ga.  28 79 

Pratt  V.  Adams,  7  Paige,  615 360 

\-.  Carroll,    8   Cranch,    471. 

304,  312,  446,  481 
V.  Ely,  (i7  Pa.  St.  396..  278, 

281,  283 
V.  Hubbell,  3  Ohio  St.  243. ..   171 

V.  Law,  9  Cranch,  456 446 

V.  Stonington  Bank,  46  Conn. 

476 36 

V.  Taliaferro,  3  Leigh,  419. ..   388 
Prebbl.^  V.    Boghurst,    1    Sw.    309. 

69,   264 
Prendergast  v.  Eyre,  2  Hogan,  81. 

418,  420,  425,  457,  520 
Pi-entice  v.   Achorn,   2   Paige,    30. 

257,  258 
Pressley  v.  Roe  (Iowa),   50   N.    W. 

Rep.  44..    159 

Preston  v.  Merceau,  2  W.  Bl.  1249. 

13.5,  210 
V.  Preston,  95  U.    S.    200. 

207,  325,  477 
V.  Whitcomb,    17   Vt.    183.  333 
Preston  Nat.   Bank  v.  Smith,  etc., 

Co.,  84  Mich.  364... 225 

Price  V.  Asheton,  1  Y.  &  C.  Ex.  441. 

99,  219,  407 
V.  Corp.  of  Penzance,  4  Ha. 

505 30 

V.  Dyer,  17  Ves.  356  ... .  190,  ' 

310,  325,  336 
V.  Griffith,  1  De  G.  M.  &  G.  SO.  216 

V.  Ley,  4  Giff.  235 331 

V.  Macaulay,  2  De  G.  M.  k.  G. 
339.. 290,  297,  298,  300, 
300,   307,  418.   441,   513, 

519,  523 
V.  North.  2   Y.  &  C.   Ex.   020. 

428,  .522 


Ixxii 


TABLE    OF  CASES   CITED. 


PAGE 

Price  V.  Salusbury,  32   Beav.  446..   223 
V.  Strange,  6  Mad.  159... 282,  284 

V.Williams,   6  Ves.  818 369 

V.  Winston,  4  Mumf.  63 42 

Prince  v.  Griffin,  27  Iowa,  514. ..444,  454 
V.  Prince,  12  Jur.  (N.  S.)221.  121 
Prindergast  v.  Eyre,  2   Hogan,  81. 

519,  521 
Printiip  V.  Mitchell,  17  Geo.  558, ..  193 
Pritchard  v.  Ovey,  IJ.  &  W.  396..  222 
V.  Todd,   38   Conn.    413. 

446,  478,  488 
Proctor  V.  Mulligan,  13  Ont.  R.  683. 

213,  214 

Prole  V.  Soady,  2  Giff.  1 99 

Propert  v.  Parker,  1  R.  &  Myl.  625.  106 
Prospect  Park,  etc.,  R.  Co.  v.  Coney 
Island,  etc.,  R.  Co.  (N.  Y.),  39  N. 

E.   17 31,  245 

Prosser  v.  Watts,  6  Mad.  59 286 

Prothei-o  v.  Phelps,   25   L.    J.    Ch. 

105 502,  524 

Prothro  V.  Smith,  6  Rich.   Eq.  324.   470 
Provisional  Municijiality  of  Pensa- 
cola  V.  Lehman,  57  Fed.  Rep.  324; 

6C.  C.  A.349 11 

Provost  V.  Rebman,  21  Iowa,  419..   348 
Pruden  v.  Williams,  26   N.   J.  Eq. 

210 549 

Pugh  V.  Chesseldine,  11  Ohio,  109.   332 
V.  Good,    3   Watts  &   S.    56. 

164,  168,  169,  171,  172 

Pullen  V.  Ready,  2  Atk.  587 316 

Pullman   Palace-Car  Co.  v.  Texas 
&  P.  R.  Co.,  4  Woods  C.  C.  317. 

55,  231 
Pulteney  v.  Darlington,  1   Bro.   C. 

C.  237 389 

Pulvertoft  V.  Pulvertoft,  18  Ves.  84,  548 
Purcell  v.  McCleary,  10  Gratt.  246.  240 
v.  Minor,  4  Wall,  513..  1,^9, 

168,  193,  197 
Puriton  v.  Northern   111.   R.  R.,  46 

111.  297 215 

Pusey  v.  Pusey,  1   Vern.  273 14 

Puterbaugh  v.  Puterbaugh  (Ind.), 

30N.  E.  R.  519 164 

Putnam  v.  Grace,   161   Mass.   237, 

90,  410 

v.  Tinkler,  83  Mich.  628..    167 

Pyke  V.  Pyke,  1  Ves.  Sen.  376 405 


PAGE. 

Pyke  V.  Williams,  2  Vern.  455.  164,  168 

Pyne  V.  Blackburn,  3  Ves.   34 327 

Pyrke  v.  Waddingham,  10  Hare,  1. 

278,  279,  280,  281,  282 

Q. 

Query   v.    Liston  (la.),    60   N.    W. 

Rep.  524 159 

Quinn  v.  Olson,  34  Minn.  422. .  469,  486 
V,  Roath,  37  Conn.  16 ....  51, 
55,  57,  315,  324,  325,  331, 

345,  444,  454,  462,  466 

R. 

Radcliffe   v.    Warrington,    12    Ves. 

332 47,444,  485 

Rader  v.  Neale,  13  W.  Va.  373....    489 
Radford   v.   Willis,  L.  R.  7   Ch.  7. 

278,  283 

Railroad  v.  Suley,  45  Mo.  220 76 

Railroad  Co.  v.  Steinfeld,  42  Ohio 

St.  449 345 

v.  Telegraph  Co.,  38 

Ohio  St.  24 34 

Railsback  v.  Walke,  81  Ind.  409. . .   174 
Raines  v.  Callaway,  27  Tex.  678.. .  333 

Rake  v.  Pope,  7  Ala.  161 141 

Ramlaugh  v.  Hayes,  1  Vern.  189..     21 
Ramsbottom  v.  Goston,   1  V.  &   B. 

165 337,  341 

Ramsay  v.  Gheen,  99  N.  C.  215  ....    246 
Ramsden  v.  Hirst,  4  Jur.  (N.  S.)  200.  415 
v.  Hylton,  2  Ves.  Sen.  306. 

246,  405 
Ramsteteler   v.  Atkinson,  4   McAi'- 

thur,  382 25 

Randall  v.  Hall,  4  De  G.  &  Sm.  343.  409 
V.    Latham,   36   Conn.    48. 

383,  384 
V.  Morgan,  12  Ves.  76.. 98,  136 
Ranelagh  (Lord)  v.  Melton,  2  Dr.  & 

Sm.  278 .,  .   459 

Ranger  v.  Gt.  West.  R"y  Co.,  5  H. 

L.  C.  73 69,  358 

Rankin  v.  Huskisson,  4  Sim.  13... .     32 
V.  Lay,  2  De  G.  F.  &  J.  65. 

370,  430 
v.  Maxwell,  2  A.  K.  Marsh. 

488 540 

v.  Mortimer,  7  Watts,  372  .   317 


TABLK    OF  CASES    CITED. 


Ixxiii 


PAGE. 

Rankin  V.  Simpson,    7    Harris,  471. 

ir)0,  178,  192 
llaphael  v.  Thames  Valley  R'y  Co., 

L.  R.  2Ch.  147 30 

Rathbun  v.  Rathbun,  <j  Barb.  99. 

145,  149,  153 
Raw  V.  Von  Ledlit/,  132  Mass.  164. 

251,  277 

Rawden  v.  Shadwell,  Ami).  269  ... .   361 

Rawdon  v.  Blatchford  1  Sandf.  344.  353 

Rawlens  v.  Shropshire,  45  Geo.  182.     12 

V.  "Wickham,   1    Giff.   355. 

290,  300 
Raymond  v.  Pritchard,  24  Ind.  318,  526 
V.  San  Gabriel  Val.  L.  & 
W.  Co.  (C.  C.  A.),  53 
Fed.  Rep.  883 ....  7, 

12,  449,  477 
V.  Stone,  2  Edw.  128.. 28,  380 

Rayner  v.  "Wilson,  43  Md.  440 311 

Read  v.  Power,  12  R.  I.  16 286 

Reade   v.  Livingston,  3  Johns.  Ch. 

481 136 

Ready  v.  Noakes,  29  N.  J.  Eq.  497. 

273,  274 
Rearich  v.  Swinehart,  1  Jones,  233,  324 

Reavis  v.  Reavis,  50  Ala.  60 531 

Recknagle  v.  Schmalz,  72  Iowa,  63. 

82,  155,  173 

Rector  v.  Price,  1  Mo.  373 486 

Rector,  etc.,  of  St.  David's  Church 

V.  Wood  (Oreg.),  34  P.  18... 20,  375 
Redding  v.   Wilkes,    3   Bro.   C.  C. 

400 157,  158 

Rede  v.  Oakes,  4  De  G.  J.  &  S.  505. 

278,  285,  424 
Redgrave   v.   Hurd,   20   Ch.   D.  1. 

299,  302 

Redmond   v.  Dickerson,   1    Stockt. 

507 66 

Redshaw  v.  Bedford  Level,  1   Ed. 

345 244 

Reece  v.  Trye,   1  De  G.  &  Sm.  273.  18 

Reech  v.  Kennegal,  1  Ves.  Sen.  123.  205 
Reed  v.  Breeden,    11  P.  F.  Smith, 

460   462,  469 

v.    Campbell,    43    N.    J.    Eq. 

406 217,  219 

V.  Noe,  9  Yerg.  283.  400,  421,  518 

V.  Reed,  12  Pa.  St.  117. .  .164,  168 

V.  Vidal,  5  Rich.  Eq.  289  ....  369 


I'AGB. 

Reed's  Heir.s  v.  Ilornback,   4  J.  J. 

Mar.sh.  377 227 

Rees  V.  Parish,  1  McCord  Ch.  59....     i:i\i 

V.  Smith,  1  Ohio,  124  :AQ 

Reese  v.  Hoeckel,  58  Cal.  281.. 504,  516 
V.  Holmes,  5  Rich.  Eti.  531..  17 
V.  Lee  Co.,  49  Miivs.  639..  12.  547 
V.  Reese,  41  Md.  554  ....  140, 

154,  192,  223,  229,  244 
V.  Union  Pac.  R.  R.,  1  Wool. 

26 28 

Ree.se'a  Appeal.  122  Pa.  St.  392  .. .       25 

Reeves  V.  Dickey,  10  Gratt.  138...  240 

V.  Kimball,   40  N.  Y.  299..  400 

V.  Pye,  I  Cranch  C.  C.  219.  158 

V.  Reeves,  9  Mod.  328 18 

Reg.  v.  Birmingham,   etc.,  R'y  Co. 

15  Q.  B.  634 43 

Regents    Canal    Co.    v.    Ware,    23 

Beav.  575 43,  410,  497 

Reilly  v.  Roberts,  34  N.  J.  Eq.  299.  21 
v.  Smith,  25  N.  J.  E<i.  1.j8. 

373,  528 
Remington  v.  Irwin,  2  Hariis,  143. 

411,  444,  453,  466 
Rennie  v.  Morris,  L.  R.  13  E(i.  203.     23 

Renshaw  v.  Gans,  7  Barr.  119 324 

Repetti  v.  Maisak,   6  Mackey,  366. 

120,  129,  223 

Requa  v.  Snow,  76  Cal.  590 474 

Rerick  v.  Kern,  14  S.  &  R.  267 . . . .  186 
Reuss  v.  Picksley,  L.  R.  1  Ex.  342.  Ill 
Revel  v.  Hussey,   2  Ball  &  B.  288. 

244,  260 
Reybold  v.  Herdman,  2  Del.  Ch.  34.  21 
Reynell  v.  Sprye,  8  Hare,  222. 

290,  295,  309 
Reynolds  v.  Hewett,  27  Pa.  St.  176. 

177,  189 
v.  Johnston,  13  Tex.  214.  164 
v.    Kirk    (Ala.),    17    So. 

Rep.95 122 

V.  Necessary  (Va.),  13  S. 

E.  Rep.  348 137 

V.  Nelson,  6  Mad.  18.  469,  470 
V.  O'Neil,    26   N.  J.  E(i. 

223   12 

V.  Pitt,  19  Ves.  134... 412,  453 
V.  Reynolds,  42  Mo.  App. 

622 166 

V.Waller,   IWsu^h.  164..   2.-)T 


Ixxiv 


TABLE   OF  CASES   CITED. 


PAGK. 

Reynolds   \'.    Waring,    ^'oii.   340. 

192,  193 

Rhine  v.  Robertson,  27  Pa.  St.  30..  171 

Rhoades  v.  Castner,  12  Allen,  130..   123 

Rhodes  V.  Frick,  6  Watts,  317.  164,  171 

V.    Ibhertson,   4  De  G.  M. 

&  G.787 439 

V.    Rhodes,    3   Sandf.    279. 

150,  161,  162,  166,  190,  194 
Ricard  v.  Sanderson,  41  N.  Y.  179.  548 
Rice  V.  D'Arville  (Mass  ),  39  N.  E. 

Rep.  180 400 

V.  Savery,  22  Iowa,  470 548 

Rick  V.  Jackson,  4  Bro.   C.  C.  519. 

325,  343 
Richards  v.  Green,  8  C.  E.  Green, 

32 230 

V.  Porter,  6  B.   &  C.  437. 

121,  124 
Richardson  v-  Hamlet,  33  Ark.  237.     10 
V.  Linney,    7    B.    Mon. 

571 :  . . . .   400 

V.    Peacock,    26   N.    J. 

E(i.40 33 

V.    Smith,   L.  R.  5  Ch. 
648.. 213,  215,  382, 

422,  520 
Richmond  v.  Dubuque,  etc.  R.  R., 
33  Iowa,  422..   10, 
11,  35,  38,  66,  383,  531 
V.   Foote,   3   Lans.  244. 

167,  173 
V.    Grey,    3   Allen,    25. 
240,  416,  417,  455, 

479,  489 
V.  Koenig,43Minn.  480.  279 
V.    Robinson,   12    Mich. 

193 488,  528,  552 

Richter   v.    Selin,    8   S.  &   R.   425. 

389,  391,  392,  397 
Ricketts  v.  Bell,  1  De  G.  &  Sm.  335. 

220,  231,  337 
Riddle  v.  Cameron,  50  Ala.  263 ... .  12 
Rider  v.  Gray.  10  Md.   282 ... ,  415, 

450,  490,  541 
V.Powell,  28 N.Y.  310..   321, 

322,  327,  332,  336,  345 
Ridgway  v.  Gray,  1  Hall  &  T.  195.  516 
V.  Ridgway,  69  Md.  242. 

156,  193 
V.  Sneyd,  Kay,  627 323 


PAGE. 

Ridgway  v.  Wharton,  6  H.  L.  Cas. 
238....   87,  89,  113, 
11.5,  116,  119,  199,  217 
Ridley  v.  McNairy,  2  Hump.   174. 

138,  185 
Riesz's  Appeal,  73  Pa.  St.  485. .  373, 

526,  529 
Rife  V.  Lybarger,  49  Ohio  St.  422.  286 
Rigby  V.  Gt.  West.  R'y  Co.,  2  Ph. 

44 33 

Riggles  V.  Enery,  159  U.  S.  244 ... .    189 

Right  V.  Cuthell,  5  East,  491 221 

Riley   v.    Famsworth,    116    Mass. 

223 131,  218 

V.  McNamara  (Tex.),  18  S. 

W.  Rep.  141 477 

Ringer  v.  Holtzclaw,  112  Mo.  519..  135 
Risen  V.  Newberry  (Va.),  18  S.  E. 

W.  Rep.  916 479 

Ritson  V.  Dodge,  33  Mich.  463 474 

Riltenhouse  v.  Tomlinson,  27  N.  J. 

Eq.  379 325 

Roach  V.  Dickinson,  9  Gratt.  156..   390 

Roake  v.  Kidd,  5  Yes.  647 279 

Robb  V.  Mann,  1  Jones,  300. 

389,  391,  392,  393,  397 
Roberge  v.  Winn  (N.  Y.),  39  N.  E, 

Rep.  631 189,196,223 

Roberts  v.  Bassett,  105  Mass.  409..  219 
V.  Berry,  3  De  G.  M.  &  G. 

284 391,  402,  466 

V.  Campbell,  59  Iowa,  675.  223 
V.  Lovejoy,    60   Tex.    253, 

257 504 

V.  Marchant,  1  Hare,  547..  551 
V.  Massey,  13  Ves.  561  ...  497 
V.  Tucker,  3  Wels.  H.  &  G. 

632 124 

Robertson  v.  Gt.  West.  R'y  Co.,  10 

Sim.  314 545 

V.  Hogsheads,    3   Leigh, 

667 502 

V.  Patterson,  10  Ont.  R. 

267 230 

V.  Robertson,     9   Watts, 

32...  153,156,  170,  193 
V.  Skelton,  12  Beav.  260. 

394,  500 
Robeson  v.  Hombaker,   2   Green's 

Ch.  60 216,  228 

Robinson  v.  Bland,  2  Burr.  1077. . .   361 


TABLE    OF   CASES    CirKD. 


Ixxv 


TAGE. 

Robinson  v.  Garth,  G  Ala.  204 123 

V.  Keteltas,   4   Edw.  Ch. 

67  10 

V.  Pag-e,  3  Russ,  119. 

325,  338,  343 
V.  The  Chartered   Bank, 

L.  R.  1  Eq.  32 23 

V.    Thrailkill,     110   Ind. 

117   186 

V.  Trufant,  97  Mich.  110.  468 
V.  Wall,   10   Beav.    61. 

356,  357 
V.  Waller,  81  Ga.  704  .. .     90 
Roby  V.  Cospitt,  78  111.  638. 

114,  474,  478,  479,  552 
Rock   Island  Lumber,    etc.  Co.  v. 
Fairmount  Town  Co.  (Kan.),  32 

R.  1100 6,       7 

Rodman   v.    Zilley,    Saxton,    320. 

258,  272 
Roehl  V.  Haumesser,  114  Ind.  311. 

116,  120.  123,  215.  268 
Roffey  V.  Shallows,  4  Madd.  227. 

419,  519 
Rogei-s  V.  Atkinson,  1  Kelly,  12. 

332,  345 
V.  Challis,  27  Beav.  175.  67,  535 
V.  Gosnell,  58  Mo.  589  ....  548 
V.  Saunders,  16  Me.  92. 

54,  55,  57,  65.  109,  229, 

237,  315.  469,  474,  479 
V.  Taylor,   40  Iowa,  193. 

400,  435 
V.  Van  Nortwick  (Wis. ),  58 

N.  W.  Rep.  757 479 

V.  Waterhouse,  4  Drew^  329. 

278,  284 
V.  Williams,  8  Phila.  123. . .  12 
V.  Wolfe,  104  Mo.  1 .. . .  181,  193 

Roget  V.  Merritt,  2  Cai.  117 109 

Rolfe  V.  Peterson,  2  Bro.  P.  C.  436.     69 
Rollins  Investment  Co.  v.  George, 

48FedRep.  776 24 

Romans  v.  Langevin,  34  Minn.  312.  215 
Rondeau  v.  Wyatt,  3  H.  Bl.  68. 

198,  199 
Rook  V.  Jimeson,  67  Iowa,  202..  1.14,  159 
Roos  V.  Lockwood,  59  Hun,  181 ... .  527 
Roper  V.'  Bartholomew,  12  Pri.  797.  "69 
Ropes  V.  Upton,  125  Mass.  2.")8...32,  69 
Rose  V.  Bates,  12  Mo.  30 206 


i'A(;i:. 

Rose  V.  Callan<l,  5  Ves.  186 282 

V.  .Clark,  1  Y.  &  C.  534 CtJ 

V.  Cunynghamc,  1 1  Ves.  550. 

121,  :!SS 

V.  Swann,  aii  111.  M 4T'.t 

Rosenberger  v.  Jones,  118  Mo.  55',t.   lOH 
Rosenthal  v.   Fi-eeburger,   26  Md. 

75 174,  175 

Rosevelt  v.  Fulton,  2  Cow.  129 ... .    344 
Ross  v.  Baker,  72  Pa.  St.  187..  130,  215 

V.  Park-s  93  Ala.  153 238 

v.  Purse  (Colo  ),   28   Pac.    R. 

473 225 

V.  Union  Pac.  R.  R.,  1  Woolw. 

26 24,  385 

V.  Wilson,  7  Sm.  &  Mar.  753..  332 
Rostetter  v.  Grant,  18  Ohio  St.  126. 

374,  526,  531 
Rothholtz   V.    Schwartz,   46   N.   J. 

Eq.477 7,  21,     34 

Ronndtree    v.    McLaia,  1  Humph. 

245 13,     66 

Rourke    v.    McLaughlin,    38   Cal. 

196  10 

Routledge  V.    Grant,   4  Bing.  653. 

84,     90 

Rowe  V.  Teed,  15  Ves.  375 201 

V.  Young,  3  Y.  &  C.  Ex.  199.  493 
Rowley  v.  Adams,  12  Beav.  476. ..  4!»S 
Rowton  v.  Rowton,   1  llm.  &  Mun. 

92 179,  193 

Rucker  v.  Stedman,  73  Md.  396.. ,   173 
RiiflPs   Appeal,  117   Pa.    St.    310. 

263,  479 
Ruffner  v.  McConnell,  17  111.  212  . .  317 
Rnnnnens  v.  Robbins,  3  De  G.  J.  & 

S.  88 83,  218 

Rummingfon  v.  KcUey,  7  Ohio,  432. 

461,  469,  474 
Runker  v.  Abell,  8  B.  Mon.  506...  185 
Runnels  v.  Jackson,  1  How.  358  . .  466 
Runnyson   v.   Ro/ell,    106  Pa.    St. 

407  474 

Russell  v.    Baughman,  94  Pa.  St. 

400 263.  479 

V.  NicoU,  3  Wend.  112...     390 

V.  Switzer,  63  Ga.  711....    268 

Russell's  Appeal,  3  Harris,  319 ... .    391 

Rust  V.  Conrad,  47  Mich.  449.. 238,  369 

V.  Strickland  (Colo.  App.).  28 

Pac.  Rep.  141..   400,  432 


Ixxvi 


TABLE   OF  CASES   CITED. 


PAGE. 

Rutan  V.  Crawford,  45  N.   J.   Eq. 

99 193 

Rutenberg-  v.  Main,  47  Cal.  213. 

110,  110 
Rutherford   v.    Haven,     11     Iowa, 

507  436 

Ryan,  Thomas,   In  re,  3  I.  R.  Eq. 

238 140,  509 

Ryan  v.  Daniels,   1   Y.   &  C.  C.  C. 

60 259 

V.  Davis,  5  Mont.  505 215 

V.  Dox,  34  N.  Y.  307 20i) 

V.  Sing,  7  Ont.  R.  266 114 

V.  Wilson,  56  Tex.  36 150 

Ryder  v.  Loomis  (Mass.),  36  N.  E. 

Rep.  836 477 

Ryno  V.  Darby,  5  C.  E.  Green,  231. 

215,  325,  331,  840,  341 

S. 

Sackett  v.  Spencer,  65  Pa.  St.  89. . .  167 

Soco  V.  Henry,  39  Ind.  414 185 

Saeg-er's  Appeal,  96  Pa.  St.  479  ... .      20 

Saffoi-d  V.  Wykoff,  4  Hill,  442 76 

Sage  V.  McGuire,  4  "Watts  &  S.  228. 

168,  178,  192 
Sailors  v.    Gambril,   1   Sm.    (Ind.) 

82.' 139 

St.  John  V.  Benedict,  6  Johns.  Ch. 

23 244 

St.  Louis,   I.  M.    &  S.  Ry.  Co.   v. 

Beidler,  45  Ark.  17....  120,  124, 

353,  504 
St.  Paul,  etc.  V.  Brown,   11  Minn. 

356 10,55,57,435,  531 

Sale  V.  Lambert,  L.  R.  18  Eq.  1.  ..  126 
Salfield  V.  Sutter  Co.  L.  I.  &  R.  Co., 

94  Cal.  546 159 

Salmon  Falls  M'fg  Co.  v.  Goddard, 

14  How.  446..   108,  127.  128,  133,  135 
Salisbury  v.  Hatcher,  2  Y.  &  C.  C. 

C.  54 240,  489 

Sample  v.  Collins  (Iowa),  46  N.  W. 

Rep.  742 193 

Sams  V.  Fripp,  10  Rich.  Eq.  447. ..   109 
Samuda  V.  Lawford,  8  Jur.  (N.  S.) 

739 538 

Sanborn  v.  Flagler,  9  Allen,  474. 

Ill,  112 
V.  "Woodman,   5  Cush.  36. 

411,  453 


PAGE. 

SundtM-s  V.  Bryer,  152  Mass.  141 .. .   429 
V.  Classon,  13  Minn.  379..   548 
V.  Rod  way,  22  L.  J.  Ch.  230.     27 
Sanderson  v.  Cockermouth,  etc.  R'y 

Co.  11  Beav.  497 28,  225 

Sands  V.  Sands,  112  111.  225 321 

Sanford  v.  Cloud,  17  Fla.  532 489 

V.  Washburn,  2  Root,  499..   344 

V.  Weeks,  38  Kan.  319...,    453 

v.  Wheelan,  12  Oreg.  301.  7,  417 

Sanfoss  v.  Jones,  25  Cal.  481 . .  206,  860 

Sanquirico  v.  Bennedette,  1   Barb. 

315 82,  383 

Sansome  v.  Rhodes,  6  Bing.  N.  C. 

261 390 

Sari  V.  Bourdillon,  1  C.   B.  (N.  S.) 

188 135 

Barter  v.   Gordon,  2  Hill  Ch.   121. 

17,  226,  273,  448 
Satterthwait  v.  Marshall,  4  Del.  Ch. 

337,  355 25,  369 

Satterthwaite   v.    Emley,    3   Green 

Ch.489 136 

Sault   Ste.    Marie   L.    &   I.    Co.  v. 

Simons,  41  Fed.  Rep.  835 90 

Saunders  v.  Cramer,  3  Dr.  &  W.  87. 

98,  553 
v.    Simpson,    2    Har.    & 

Johns.  81 42 

Saunderson  v.  Jackson,  2  B.   &  P. 

239 107,108,  120,  124 

Savage  v-  Brocksopp,  18  Ves.  335. .   244 
V.  Carroll,  1  Ball.  &  B.  265. 

153,  174,  175,  179,  192,  194 
V.  Lee,  101  Ind.  514..   145, 

171,  201 
Savery  v.  Spence,  13  Ala.  561..   13, 

17,     66 

Savile  v.  Savile,  1  P.  Wms.  745. 

272,  275,  406 
Savill  V.  Taucred,  1  Ves.  Sen.  101. 

14,     15 
Sawe  V.  Ferris  (111.),  34  N.  E.  Bep. 

52 537 

Sawyer  v.  Hovey,  3  Allen,    831. 

833,  336 
v.  Sledge,  55  Geo.  152.  422,  486 

Saxon  V.  Blake,  29  Beav.  438 259 

Say  V.  Barwick,  1  Y.  &  B.  195 257 

Sayers  v.  CoUyer,  28  Ch.  D.  103,  24 
Ch.  D.  ISO 263 


TABLE   OF  CASES   CITED. 


Ixxvii" 


i'a<;k. 
Say  ward.  \-.    (xardnei-,   5  Wii^h.  .St. 

247 13;'),  47(j 

Scarboroug-h  v.  Arrant,  25  Tex.  129.  531 

Scarlett  V.  Stein.  40  Mil.  512 444 

Schaeffer  v.  Slea.le,  7  Blackf.  178...  353 
Schenckv.  Spring- Lake  Beach  Imp. 

Co.,  47  N.  J.  E<i.  44 1-29 

Schermerhorn   v.    Nihlo,    2   Bosw. 

161 286 

Si'liields  V.  Horbach  (Nebr.),  44  N. 

W.  Rep.  465 460 

Schloetterer  v.  Wagnier  (N.   J.),  21 

Atl.  Rep.  863 488 

Schmidt  v.  Gatewood,  2  Rich.   Va\. 

162 203,  206 

V.    Labatut,    1    Speer    Eq. 

421 317 

V.  Livingstone,  3  Edw.  Ch. 

213 476 

V.  Opie,  33  N,  J.  Eq..  254.  389 
Schneider  v.  Heath,  3  Camp.  506..  309 
V.  Norris,  2  M.  &  S.  286.  108 
School  District  v.  Macboon,  4  Wise. 

79 137,  179 

Schotsmans  v.  Lancashire,  etc.  R. 

R.  Co.,  L.  R.  2  Ch.  332 21 

Schroeder  v.  Germeinder,  10  Nev. 

355 232,  236,  238 

Schroeppel   v.    Hopper,    40    Barb. 

425 7,  11,  389,  478 

Schuessler  v.  Hatchett,  58  Ala.  181.  397 
Schuey  v.  Schaeffer,  130  Pa.  St.  18.  167 
Schweitzer  v.  Connor,  57  Wis,  177..  122 
Scofield  V.  Stoddard,  58  Vt.  290  ... .   199 

Scoones  v.  Morrell,  1  Beav.  251 491 

Scott  V.  Billgerry,  40  Miss.  119..  13, 

66,  531 
V.  Fields,  7  Ohio,  424  .. .   462,  465 

V.  Frink,  53  Barb.  533 322 

V.  Gill,  19  Iowa,  187 548 

V.  Hanson,  1  Sim.  13..  300,  517,  .520 
V.  Rayment,  L.  R.  7  E(i.  112. 

369,  535 

V.  Scott,  1  Cox,  366 97 

V.  Tyler,  2  Dick.  719 362 

Scottish  N.  E.  R'y  Co.  v.  Stewart,  3 

Macg.   382 75 

Seager  v.  Burns,  4  Minn.  141.   526, 

546,  552,  553 

Seagood  v.  Meale,  Prec.  in  Ch.  560. 

122,  159,  160,  164,  174 


I'AGE. 

Seaman  v.  Aschorman,  51  Wis.  678. 

14.5,  168,  201,  217,  219,  220 
V.  Van  Ren.sselaer,  10  Barb. 

81 5.5,  388 

V.  Vawdrey,    16  Ves.    393. 

286,  419,  507,  520 

Searle'v.  Hill,  73  Iowa.  367 25 

Seaton  v.  Mapp,  2  Coll.  C.  C.  556. 

439,  457,  458 

Seavey  v.  Drake.  62  N.  H.  393....  185 

Seaward  v.  Willak,  5  East,  202....  403 

Seawell  v.  Webster,  7  W.  R.  691. . .  33 

Secomhe  v.  Steei.-,  20  How.  94....  552 
Secrest  v.   McKenna,   1  Strob.  Eq. 

356 400 

Seeley  v.  Howard,  13  Wise.  336...  435 

Seichrist's  Appeal,  66  Pa.  St."  237..  12 
Seitzinger  v.   Ridgway,   4  W.  &  S. 

472 226 

Selby  V.  Geinez,  12  HI.  69 345 

V.  Hutchinson,  4  Gilm.  319..  396 

V.  Selby,  3  Mer.  2 108 

Seidner  v.  McCreery  (Md.),  23  Atl. 

Rep.  641 286 

Sellack  v.  Harris,  5  Vin.  Abr.  521..  205 

Sellick  V.  Tallman,  87  N.  Y.  106  ..  403 
Semnes  v.  Worthington,  38  Md.  298. 

136,  148,  154,  192 
Seton  V.  Slade,  7  Ves.  265. 

109,  238,  239,  442,  446,  461,  462, 

468.  484,  487,  492 

Seymour  v.  Davis,  2  Sandf.  245  ...  139 
V.   De   Lancey,    6   Johns. 
Ch.  222....  54,  55,  56, 
57,  62,  258,  272,  273, 

278,  392,  449,  489 

Shackle  v.  Baker,  14  Ves.  468.. 32,  380 
Shackleton  v.  Sutcliffe,  1  De  G.  & 

Sm.  609 SO.'i,  422,  520 

Shaddle   v.    Disborough,  30  N.  J. 

Eq.  370   273 

Shade  v.  Oldroyd,  39  Kan.  313....  266 

Shaffer's  Appeal,  110  Pa.  St.  382 . .  183 

Shafter  v.  Niver,  9  Mich.  253 444 

Shahan  v.   Swan   (Ohio),  26  N.  E. 

Rep.  222 154 

Shakespeare  v.  Alba,  76  Ala.  351..  199 
Shannon  v.   Bradstreet,   1   Sch.    & 

Lef.  72 151,  231 

V.  Taylor,  16  Tex.  413.. .  551 

Shapland  v.  Smith,  1  Bro.  C.  C.  75.  279 


Ixxviii 


TABLE    OF   CASES    CITED. 


PAGE . 

Shardlow  v.  Cottrell,  20  Ch.  D.  90; 

IS  Ch.  D.  280 120,  215 

Sharman   v.  Kharman,   4   Reports, 

124;  67  Law  Times,  834 166 

Sharkey  v.  McDnrmott,  01  Mo.  647, 

652 163,  268 

Sharp  V.  Adcock.  4  Russ.  374 284 

V.  Milligan,  22  Beav.  606. 

114,  474 
V.  Trimmer,  9  C.  E.  Green, 
422....    413,444,446, 

447,  453,  489 
V.  Wright,  28  Beav.  150. 

400,  474 
Sharp's  Rifle  Man.  Co.  v.  Rowan, 

35  Conn.  127 55 

Shattuck  V.  Cassidy,  3  Edw.  Ch.  152.     10 
V.  Cunningham  (Pa),  31 

Atl.  Rep.  136 433 

Shaw  V.  Fisher,  5  De  G.  M.  &  G. 

596 22 

V.  Livermore,  2  Greene,  338.     39 

V.  Nudd,  8  Pick.  9 115 

V.  Thackray,  1  Sm.  &  G.  537. 

257,  258,  553 
V.  Vincent,  64  N.  C.  690. 

422,  518,  520 
Shawmut  Bk.  v.  P.  &  M.  R.  R.,  31 

Vt.  491 76 

Sheaphead  v.  Walker,  L.  R.  20  Eq. 

659 175,  444,  448,  476 

Sheffield  v.  Collier,  3  Kelly,  82 ... .    186 
V.  Mulgrave  (Ld.),  2  Ves. 

526   279,  280 

Sheffield  Gas,  etc.,  Co.  v.  Harrison, 

17Beav.  294 23,  369 

Sheid  V.  Stamps,  2  Sneed.  172. 

126,  135,  226 
Shelburne   v.  Inchiquin,  1   Bro.  C. 

C.   341 333 

Shelby  v.  Mikkelson  (N.  D.),  63  N. 

W.  Rep.  210 436 

V.  Smith,    2   A.   K.   Marsh. 

504 345 

Shellhamer  v.  Ash,  83  Pa.  St.  24. . .  268 

Shelly  V.  Nash,  3  Mad.  232 268 

Shelson  v.  Franklin,  6  Munf.  210..   353 
Shenandoah  Val.  R.  Co.  v.  Dunlap, 

86  Va.  75 232 

Shepard  v.  Doolan,  3  Dr.  &  War.  1. 

278,  283 


PAGE. 

Shepherd  v.  Bevin,  9  Gill.  32. 

154,  179,  192,  277 
V.  Gillespie,  L.  R.  5  Eq. 

293 23 

V.  Shepherd,    1   Md.  Ch. 

244....  79,  1.54,  164,  192 

Sheplar  v.  Green,  96  Cal.  218 433 

Sherbui-ne  v.  Shaw,  1  N.  H.  157. . .   126 
Sherman  v.  Scott,  27  Hun,  331  ....    268 
V.  Willets,  17  Neb.  478. 

11,     55 
V.  Wright,  49  N.  Y.  227..     55 
Sherwin  v.  Shakespear,  5  De  G.  M. 

&  J.  517 497,  498,  499 

Shields  v.  Allen,  77  N.  C.  375 286 

V.  Trammell,  19  Ark.  51. 

201,  204 
Schiffer  v.  Pruden,  64  N.  Y.  47....  419 
Shillibur  v.  Jarvis,  8  De  G.  M.  &  G. 

79 164 

Shipman  v.  Campbell  (Mich.),  44  N. 

W.  Rep.  171 126,  135 

Shipp  V.  Swann,  2  Bibb.  82 345 

Shirley  v.  Davis,  6  Ves.  678 421 

V.  Shirley,  7  Blackf.  452.. .   109 
V.  Spencer,  4  Gilm.  583. 

166,  193 
V.  Stratton,    1    Bro.    C.    C. 

440 256,  352,  355 

Shively  v.  Welch,  2  Oreg.  288 332 

Shockley  v.  Davis,  17  Ga.  177 25 

Short  v.  Kieffer  (111.),  31  N.  E.  Rep. 

427 435 

Shortall  v.  Mitchell,  57  111,  161.  446,  479 
Shortwell  v.  Murray,  1  Johns.  Ch. 

512  .  317 

Shovel  V.  Bogan,  2  Eq.  Cas.  Abr. 

688 427,  533 

Shovers  v.  Warwick  (111.),  38  N.  E. 

Rep.  792 193 

Showman  v.  Miller,  6  Md.  479 317 

Shreck  v.  Piera,  8  Iowa,  450 437 

Shrewsbury,  etc.,  R'y  Co. v.  London, 

etc.,  R'y  Co.,  22  L.  J.  Ch.  682.  75,  253 
Shrewsbury,  etc.  R'y  Co.  v.  N.  W. 

R-yCo.,  6H.L.  Cas.  113.. 76,  259,  265 
Shrewsbury,  etc.,  R'y  Co.  v.  Stour 
Valley  R'y  Co.,  2  De  G.  M.  &  G. 

882   263 

Shrew.sbury  (Loi-d)  v.  M.  Staftord- 
shire  R'y  Co..  L.  R.  1  Eq.  .593. ..     77 


TABLE    OF   CASES    CITED. 


Ixxix 


PAGE. 

Shrivel-  v.  Shriver,    80    N.    V.  575, 

584 270,281,284,280,287,  425 

Shull  V.  Shiill,  100  Iii.l.  477 248 

Sickel  V.  Moseuthal,  30  Beav.  371 . .     07 
Sidebotham  v.  Bari-ing-ton,  3  Beav. 

524 489 

Siniinonds  v.  Swaiuo,  1  Taunt.  549.  376 
Simmons  v.  Headlec,  102  Mo.  186..  174 
V.  Hill,  4  Harris  &  McH. 

2r)2 ...166,  179 

V.    Spruill,   3   Jones    Eq. 

(X.  C)9 130 

Simons  V.  Knight,  71  Ala.  197 402 

Simon  v.  "Wild,  84  Kan.  157 207 

Simondson  v.  Tweed,  Gilb.  35 198 

Simpson  v.  Breckenridg-e,  8  Casey, 

287 113 

Sims  V.  Bond,  5  B.  &  Ad.  389 128 

V.  McEwen,  28  Ala.  184.  340,  531 
Singer'.s  Manuf.  Co.  v.  Union  But- 
tonhole,   etc.    Co.,    6    Fish,   Pat. 

Cas.  480 33 

Singstack   v.    Harding',    4    Ilai-.    & 

Johns.  186 123 

Siter's  Appeal,  2  Casey,   178..  389.  391 
Sites  V.  Kellar,  6  Hamm.  207.  137, 

145,  159 
Skett  V.  Whitmore,  Freem.  Ch.  281.  159 
Skidmore  v.  Bradford,  L.  R..  8  Eq. 

134 98 

Skinner  v.  Dayton,  2  John.  Ch.  526.     09 
V.  McDouall,  1  De  G.  &  Sm. 

265 89,  92,  199,  216 

Skipwith  V.  Strother,  3  Rand.  214..  361 
Slater  v.    Howie    (Kan.),  30    Pac. 

Rep.  413 431,  435 

V.  Smith,  117  Mass.,  96 110 

Slaughter  v.  Tindle,  1  Litt.  358,  304, 

312,  540 

Slice  V.  Derrick,  2  Rich.  7 171 

Slingerland  v.  Slingerland,  39  Minn. 

197 192 

Sloman  v.  Walter,  1  Bro.  C.  C.  418.     69 

Sloper  V.  Fish,  2  V.  &  B.  149 279 

Small   V.    Atwood,    6    CI.    &  Fin. 

232 303 

V.  Northern  Pac.  R.  R.  Co., 

20  Fed.  Rep.  753 172 

Smaltz's   Appeal,    99    Pa.  St.   310. 
SmelUngv.  Valley  (Mich.),    61  N. 
W.  878 142 


I'AGE. 

Smiley  v.  Bell,  Marb.  &  Yerg.  378.     66 

Smith  V.  Allen,  Saxton,  43 344 

V.  Ankrim,  13  S.  &  R.  39.. ..  225 
V.  Arm.strong,  24  Wise..  4U'..  526 
V.  Arnold,    5    Msison,    417. 

123,  135 

V.  Brown,  5  Gilm.  309 462 

V.  Bruning,  2  Vern.  392 362 

V.  Burnam,  2  Anstr.  527.  484, 

487,  492 

V.  Cansler,  83  Ky.  367 4S9 

V.  Capron,  7  Hare,  185 220 

V.  Clark,  12  Ves.  477..  ..310,  358 
V.    Countryman,    30    N.   Y. 

C55 353 

V.  Crandall,  20  Md,  482 420 

V.  Death,  5  Mad.  371 279 

V.  Dolman,  6  Bro.  P.  C.  .291. 

492,  496 
V.  Fleek's  Appeal,  69  Pa.  St. 

474 110,  237 

V.    Garland,  2   Meriv.  123. 

241,  254,  287 
V.  Greeley,  14  N.  H.  378.  344,  348 

V.  Greenlee,  2  Dev.  126 358 

V.  Greer,  3  Humph.  118 136 

V.  Harrison,  26  L.  J.  Ch.  412. 

249,  257 

V.  Henkel,  81  Va.  524 273 

V.  Johnson,  37  Ala.  633 360 

V.  Jones,  7  Leigh,  105..   117, 

lis,  123,  133 
V.  Jordan,  13  Minn.  264.  319,  333 
V.  Kelley,  56  Me.  64 ... .  372, 

531,  537 
V.  Land  &   House   Projierty 

Corporation.  28  Ch.  D.  7,  308 
V.  Lawrence.    15    Mich.   499. 

469,  479 
V.  McVeigh,  3  Stockt.  239...  154 
V.  Neale,  2  C.  B.  (N.   S.)  67. 

94,  111.  141 
V.  Osborne,  33  Mich.  410  ... .  353 
V.  Peters,  L.   R.   20  Eq.  511. 

215,  382 
V.  Phoenix  Ins.   Co.,   91  Cal. 

323 397 

V.  Pierce  (Vt.),  25  Atl.   Rep. 

1092   208 

V.  Robinson,  11  Ala.  840....  432 
V.  Sheldon,  65  111.  219..  547,  553 


Ixzx 


TABLE   OF  CASES    CITED. 


PAGE. 

Smith  V.  Smith,  1  Rich.  Eq.  130. 

154,  158,  159,  164,  173,  174 

V.  Smith,  51  Him,  164 185 

V.  Smith,  125  N.Y.  224..  40,  167 
V.  Surman,  9  B.  &  C.  561 . . . .  124 
V.  Taylor,  82  Cal.  533...  225, 

421,  437 

V.  Toleher,  4  Russ.  302 500 

V.  Turner,  Prec.   in  ('h.   561. 

174,  422 
V.  UnderduDk,  1  Sandf.  Ch. 

579 166,  171,  172 

V.  Young,  110  111.   142..   268, 

421,  437 
Smoot  V.  Rea,  19  Md.  398..   55,  57, 

420,  435,  444,  460,  531 
Smout  V.  Ilbery,  10  M.  &  W.  10. ..  295 
Smoyer  v.  Roth  (Pa.),  13  Atl.  Rep. 

191 135 

Smell  V.  Jones,    1  Watts.   &  Serg. 

128 358 

Smyth  V.  Sturges,  108  N.  Y.  495. . .   518 
Snedaker  v.   Morris,  2  Dur.  (Ky.) 

542 311 

Sneed  v.  Bradley,  4  Sneed,  301.^99,  201 
Sneesby  v.  Thome,  7  De  G.  M.  &  G. 

399 114,  252 

Snell  V.  Mitchell,  65  Me.  48.  53,  57,     65 
Snider  v.   Lehnherr,  5   Oreg.    385. 

452,  462 
Snowman  v.  Harford,   57  Me.  397. 

372,  478,  488,  531,  532 
Snyder  v.  Graves  (N.   J.),  21  Atl. 

Rep 223 

V.  May,  7  Harris,  235..  320, 

322,  345 
V.  Spaulding,  57  111.  480. 
12,  411,  413,  417,  444, 

449,  451,  453,  520 
Soames  v.  Edge,  Johns.  669 ... .  30,  536 
Sohier  v.  Williams,  1   Curtis  C.   C. 

479 285,  417,  547 

Soles   V.   Hickman,  20   Pa.  St.  180. 

133,  135,  223,  226 
Solomon  V.  Hertz,  40  N.  J.  Eq.  400.  33 
Somerby  v.  Bimtin,  118   Mass.  279. 

10,  11,  25,  105 
Somerset  (Dk.  of)  v.  Cookson,  3  P. 

Wms.  398 14,     15 

Somerset  (Dk.    of)  v.  Gourlay,  1  V. 
&B.  73 429 


PAOB. 

Somerville    v.    Truman,    4   Har.  & 

McH.  43 26 

Souffrain  v.  McDonald,  27  Ind.  269.  236 
Souter  V.  Drake,  5  B.  &  Ad.  992. . .  219 
South  &  North  Ala.  Ry,  Co.  v.  H. 

A.  &  B.  Ry.  Co.,  98  Ala.  490 31 

So.  East  R'y  Co.  v.  Knott,  10  Hare, 

122 ? 233,  478 

So.  Wales  R'y  Co.  v.  Wythes,  1  K. 

&   J.  186....  28,  30,  66,  161,  217, 

225,  384 
So.  Yorkshire,  etc.,  Co.  v.  Gt.  North. 

R'y  Co.,  9  Exch.  55 75 

Southan  v.  Stillwell,  73  Mo.  492 .. .  360 
Southby  V.  Hutt,  2  My.  &  Cr.  207.  440 
Southcourt   V.    Bish.    of  Exeter,    6 

Hare,  213....   400,474,475,482, 

486,  487 
Southern   Express   Co.  v.  Western 

R.  R.  Co.,  99  U.  S.  191 13,  369 

Southern   Pac.   R.  Co.  v.  Terry,  70 

Cal.  484 97 

Southern  Pine  Fibre   Co.  v.  North 

Augusta  Land  Co.,  58  Fed.  Rep. 

318 410 

Southern  Pine  Fibre    Co.  v.  North 

Augusta  Land  Co.,  58   Fed.  Rep. 

26 225 

Soiithmayd  v.  Southmayd,  4   Mont. 

100 164 

Southworth  v.  Hopkins,  11  Mo.  331.  410 

Sowles  V.  Hall,  62  Vt.  247 462 

Spalding  v.  Alexander,  6  Bush.  160. 

440,  478,  488,  504 
Spangler  v.  Danforth,   65   111.  152. 

131,  211 
Sparks  v.  Liverpool  W.  W.  Co.,  13 

Ves.  428 457 

V.  Sparks,  94  (?)  Neb.  527. .   360 
Speakman  v.  Fore]paugh,  8  Wright, 

363  417 

Spear  v.  Orendorf,  26  Md.  37 174 

Speir  V.  Robinson,  9  How.  Pr.  315.  550 
Spence  v.  Hogg,  1  Coll.  225..  545,  553 
Spencer  v.  Topham,  22  Beav.  573.  286 
Spicer  v.  Cooper,  1  Gale  &  Dav.  52.  135 

V.  Hoop,  51  Ind.  365 33 

Sprague  v.  Cochrane,  144  N.  Y. 

104 189 

Springer  v.  Borden  (111.),  39  N.  E. 

Rep.    603 214 


TABLE   OF  CASES   CITED. 


Ixxxl 


PAGE. 

Springle   V.    Shields,    17   Ala.  295. 

507,  529 

Springs  v.  Harven,  3  Jones  E(i.  96.  319 

V.  Sanders,  Phill.  Eq.  G7..       7 

Springwell  v.  Allen,  2  East,  448,  n.  309 

Sprinkle   v.    Hayworth,   26   Gratt. 

384 268 

Spunner  v.  Walsh,  11   Ir.  Eq.  Rep. 

597  415,  518 

Spurrier  v.  Hancock,  4   Ves.    667. 

455,  475,  480,  482 
Spurriur  v.  Fitzg-erald,  6  Ves.  548. 

198,  201,  342 
Squire  v.  Campbell,   1   My.   &  Cr. 

480 343,  400 

V.    Whitton,    1   II.    L.    Cas. 

333 209 

Stacey  v.  Vt.  Cent.  R.  R.,  27  Vt.  39.     44 
Stackpole  v.  Beaumont,  3  Yes.  96..   362 

Staley  v.  Murphy,  47  III.  244 467 

Stammere   v.    O'Donohoe,     8    Ont. 

App.  R.  161  117,  120,  124 

Standley  v.  North-western  Ins.  Co., 

95Ind.  254 21 

Stanley  v.  Chester  R'y  Co.,  9  Sim. 

264 375 

V.  Robinson,    1   R.    k,  My. 

527 250,  251 

Stanton  v.  Miller,  58  N.  Y.   192. 

209,  223 
V.  Percival,    5   H.  L.   Cas. 

257 19 

V.  Tattershall,  1  Sm.  &  Gif. 

529 323 

Stapilton  v.   Stapilton,  1  Atk.  2. 

80,  189,  247 
Stapylton  v.  Scott,  1  Yes.  425. .  340,  518 
Starens  v.   Newsome,  1  Tenn.  Ch. 

239 21,  380,  385 

Stark  V.  Wilder,  36  Yt.  752 20 

Starkey  v.  Starkey  (Ind.),  36  N.  E. 

Rep.  287 167 

Starr  v.    Vanderheyden,   9  Johns. 

253 353 

Steams  v.  Beckham,  31  (Jratt.  379. 

244,  273 
V.  Hubbard,  8  Greenl.  330. 

138.  201 

V.  Edson,  63  Yt.  259 122 

Stedwell   v.    Anderson,    21    Conn. 
139 319 


TAGK. 

Steele  v.  Biggs,  22  III.  043 402 

V.  Branch,  40Cal.  3.. 444,  452,  474 
Steenrod  v.  R.  R.  Co.,  27  W.  Ya.  1. 

156,  168 
Steevens'  Hosp.  v.  Dyas,  15  Ir.  Ch. 

Rep.  405 143,  149 

Steinberg  v.  Ismay,  35  N.  Y.  Supr. 

Ct.  35 219 

Stembridge  v.  Stembridge,  87  Ky. 

91  459 

Stent  V.  Baylis,  2  P.  Wms.  217....   399 
Stephens  v.' Ilotham,  1  K.  &  J.  571. 

273,  406 

V.  Olive,  2  Bro.  C.  C.  90.     27 

V.  Truman,  1  Yes.  Sen.  73.  548 

Stern  v.  Nysonger,  69  Iowa,  512  ..   159 

Sternberger  v.  McGovern,  56  N.  Y. 

12 537,  542 

Stevens  v.  Bagwell,  15  Yes.  139. ..  362 
V.    Cooper,    1   Johns.    Ch. 

425 196,  324 

V.  Parish,  29  Ind.  200  ....    526 

Stevenson  v.  Buxton,  37  Barb.  13..   540 

V.  Jackson,  40  Mich.  702.  375 

V.  Maxwell,  2  N.  Y.  498.  436 

Steward  v.  Winters,  4  Sandf.   Ch. 

587 21,     33 

Stewart  v.  Allen,  47  Fed.  Rep.  399.  474 
v.  AUiston,  1  Mer.  26. 

39,  215,  290,  300,  421, 

441,  520,  523 
v.  Brand,  23  Iowa,  477  ...  333 
V.  Conyngham  (Lord),  1  Ir. 

Ch.  Rep.  534 421.  520 

V.  Metcalf,  68  111.  109.. 402,  422 
V.  Raymond  R.  R.,  7  S.  & 

M.  568 400,  403 

V.  Smith,  6  Hai-e,  222,  n. . .   470 
V.  Stewart,  3  Watts,  253. 

164,  167,  184 
Stilwellv.  Wilkins,  Jac.  280... 271,  273 

Stine  v.  Sherk,  1  W.  &  S.  195 345 

Stocken  v.  Collin,  7  M.  &  W.  515..     95 
Stocker  v.  BrockleT)ank,  3   Mju;.  & 

G.  250 07,  383 

v.  Partridge,  2  Rob.  Sui>. 

Ct.  193 120 

v.  Wedderburn,  3  K.  &  J. 

393 231,  369,  384,  402 

Stockham  Iron  Co.  v.  Hudson  Ii-on 
Co.,  102  Mass.  45 ..   138 


Ixxxii 


TABLE    OF   CASES    CITED. 


Stockley  v.  Stockley,  1  V.  &  B.  23. 

171,  179,  189,  316 
Stockton  V.  Union  Oil  Co.,  4  W.  Va. 

273 427,  504 

Stoddart  v.  Smith,   5   Binney,   355. 

421,  425,  426,  521 
V.  Tuck,  4   Md.   Ch.  475. 

154,  156,  173,  193,  226 

Stoever  v.  Rice,  3  Whart  25 393 

Stokes  V.    Moore,    1    Cox,    219. 

108,  157 
Stone  V.  Buckner,  12   Sm.   &   Mar. 

73 546,  553 

V.  Commercial  Ry.  Co.,  4  My. 

&Cr.l22 43 

V.  Hackett,  12  Gray,  227  ... .      80 

V.  Hale,  17  Ala.  557 318,  332 

V.  Pratt,  25  III.  25 ....  50,  57, 

62,  246,  247,  255,  258,  267 
Storer  v.  Gt.  West.  R'y  Co.,  2  Y.  & 

C.  C.  C.  48 28,  30,  263 

Storrs  V.  Barker,  6  Johns.  Ch.  166.   317 

Story  V.  Black,  5  Mont.  26 47 

V.  Conner,  36  N.  Y.  673 437 

V.  Norwich,   etc.,   R.    R.,   24 

Conn.  94 26 

V.  Windsor  (Lord),  2  Atk.  631.  389  ' 
Stourton  v.  Meers,  1  P.  Wms.  146..   490 

Stout  V.  Weaver,  72  Wis.  148 223 

Stow  V.  Russell,  36  111.  18 462 

V.  Stevens,  7  Vt.  27 437 

Strange  v.  Crowley,  91  Mo.  287 86 

Strasbourg  R.  R.  Co.  v.  Echternact, 

21  Pa.  St.  220 24,     66 

Stratford   v.  Bosworth,   2   V.  &  B. 

341 82,  88,  124,  207 

Stratton  v.  Cal.    Land.  etc.  Co.  86 

Cal.  353,  362 434 

V.  Stratton,  58  N.  H.  473..     21 

Street  v.  Rigby,  6  Ves.  815 369 

Strehl  V.  D'Evers,  66  111.  77 105 

Stretch  v.  Schenck,  23  Ind.  77 476 

Strickland  v.  Albridge,  7  Vcs.  519..  205 
V.  Turner,  7  Ex.  208.  ..  395 

Strong  V.  Skinner,  4  Bai-b.  546 21 

Stropshire  v.  Brown,  45  Geo.  175..  193 
Stuart  (Lord)  v.  London,  etc.   R'y 
Co.,  1  DeG.  M.  &  G.  721.. ..66, 

224,  233,  265,  411,  475 
Stubblefield  v.  Patterson,  3  Heyw. 
128 271 


PAGE. 

Studds  V.  Watson,   28   Ch.   D    305. 

119,  121 
Studer  v.    Seyer,    69  Ga.    125. 

80,247,  268 
Studholme  v.  Mandell,  1  Ld.  Raym. 

279 377 

Sturge  V.  Midland   R'y  Co.,  W.  R. 

(1857-8)  233 66,  225,  370 

Sturgis   V.    Galindo,    59   Cal.    28. 

229,  238 
Sturtevant  v.  Jaques,  14  Allen,  523. 

279,  417 
Stuyvesant  v.  Davis,  9  Paige,  427..   410 
V.  Mayor,  etc.,  11  Paige, 

414 11,     31 

Suckett  V.  Williamson,  37  Mo.  388.  149 

Suggett  V.  Cason,  26  Mo.  221 141 

SuUings  V.  Sullings,    9   Allen,  234. 

230,  400,  474,  518 
Sullivan  v.  O'Neil,  66  Tex.  433....    179 
V.   Tuck,    1   Md.    Ch.    59. 

21,  24,     66 
Summerlin  v.     Frontei'iza    Mining, 

etc.  Co.,  41  Fed.  Rep.  249 537 

Sumners  v.  Bean,  13Gratt.  404.  14,     17 
Supervisors    v.    Decker,    30   Wise. 

624 347 

V.  Henneberry,  41  111. 

179 431 

Surcome  v.  Pinniger,  3  De  G.  M.  & 

G.  575 136,  143,  179,  185,  187 

Surman  v.  Hubner,  75  Md.  269  ... .    286 
Susquehanna  Ins.  Co.  v.   Perine,  7 

W.  &S.  348 344 

Sutherland  v.  Briggs,  1  Hare,   34. 

109,  l.o3,  172,  175,  179,  195 
Sutphen  v.   Fowler,    9   Paige,  280. 

10,  554 
Sutter's  Heirs  v.  Ling,  1  Casey,  466.  396 

Sutton,  Ex  parte,  2  Rose,  86 407 

V.  Hayden,  62  Mo.  101 ... .   268 
V.    Myrick,    39  Ark.    424. 

140,  154,  193 

v.  Sutton,  13  Vt.  79 166 

Swain  v.  BurnetLe,  76  Cal.  299.  189,  504 
V.  Fidelity  Ins.    Co.,  54  Pa. 

St.  455 281 

Swaisland  v.Dearsley,  29  Beav.  430. 

223,  326,  336 

Swartout  v.  Burr,  1  Pa.  St.  495 555 

Swartz  V.  Swartz,  4  Barr,  353 186 


TABLE    OF   CASES    CITKD. 


Ixxxiii 


PAGE. 

Swayne  v.  Lyon,   17  P.    F.  Smith, 
436 417 

Sweles  V.  Jackson,  12(3  Ind.  282....   174 

Sweeny  v-  Miller.  34  Me.  388 171 

Sweet  V.  Jacocks,  G  Paige,  355 204 

V.  Lee,  3  Man  &  G.  462..  109,  141 
Swepson  v.  Johnston,  84  N.  C.  449.  373 
V.  Rouse.G.'iN.  C.  34.  526,  555 
Swimin  v.  Bash,  23  Mich.  99..   290, 

297,  300,  354 

Swint  V.  Carv,  76  Ga.  322 251,  277 

Switzer  v.  Gardner,  41  Mich.  1G4..   142 

V.  Skiles,  3  Gilm.  529 199 

Syers  v.  Syers,  L.   R.  1   App.  Cas. 

174 369 

Syler  v.   Eckhart,    1    Binney,    378, 

179,  185 
Symondson  v.  Tweed,  Prec.  in  Ch. 

324 192 

Symons  v.  James,  1   Y.  &  C.  C.  C. 
487 440,  441 


Taft  V.  Kessel,  16  Wise.  273 437 

Tainter  v.  Cole.  120  Mass.  162,  165.  540 
Talbert  v.  Singleton,  42  Gal.  390. . .  347 
Talbot  V.  Ford,  13  Sim.  173..  259,  267 
Tallman  v.  Franklin,  14  N.  Y.  584. 

120,  121,  130,  223,  226 
Talmadge   v.    N.    A.    Coal   Co.,   3 

Head.  337 76 

V.  Ren.  &  S.   R.   R.,  13 

Barb.  493 141 

Tamm  v.  Lavalle,  92  111.  263..  244,  253 

Tanner  v.  Smith,  10  Sim.  410 514 

Tarbill  v.  Tarbill,  9  Allen,  278....  21 
Tartleton  v.  Vietes,  1   Gilm.  470...    199 

Tarr  v.  Scott,  4  Brews.  49 232 

Tasker  v.  Small,  3  My.  &  Cr.  63. ..  545 
Tate  V.  Conner,  2  Dev   Eq.  224 ... .   448 

Tatham  v.  Piatt,  9  Hare,  660 225 

Tatum  V.  Brooker,  51  Mo.  148.  164,  167 
Tanner  v.  Wise,  3  P.  Wms.  296  ... .  18 
Tavenner  v.  Barrett,  21  W.  Va.  656.  437 
Tawney  v.  Crowther,   3  Bro.  C.  C. 

161 89,119,124,  207 

Taylor  v.    Agricultural    Asso.,    69 

Ala.  229 39,  114 

V.  Ashton,  11  M.  &  W.  401..  295 
V.  Atwood,  47  Conn.  498  ... .      57 


I'AGE. 

Taylor  v.  Beech,  1  Ves.  Sen.  297 

136, 158,  187 
V.  Benham.  5  How.  234....   388 

V.  Brown,  2  Beav.  180 469 

V.  Chichester,   etc.  R'y  Co  , 

L.  R.2Exch.  356..   76,     77 

'  V.  Davis,  3  Beav.  38S 32 

V.  Fleet,  1  Barb.  471..   290, 

293,  299,  322,  335 
V.  Gilbertson.  2  Di-ew.  391 . .   225 

V.  Gilman,  25  Vt.   411 324 

V.  Luther,  2  Sumn.  229..  197,  204 
V.  Merchants',  etc..  Ice  Co., 

9  How.  390 21 

V.  Merrill,  55  111.  52...   114, 

244,  474 
V.  Neville,  3  Atk.  384...  20,     21 

V.  Patrick,  1  Bibb.  168 257 

V.  Porter,  1  Dana,  422.. 415.  450 
V.  Portington,  7  De  G.  M.  & 

G.  328 223,  225 

V.  Stibbert,  2  Ves.  437 553 

V.  Von   Schroeder  (Mo.),  16 

S.  W.  675....  90,174,  193 
V.  Williams,  45  Mo.  SO..   55, 

226,  278,  281,  422 
Teague  v.  Fowler,  56  Ind.  569  ....  203 
Telegraph  Co.  v.  Telephone  Co.,  39 

N.  J.  Eq.  160 207 

Telfair  v.  Telfair,  2  Dessau.  Ch.  271.  237 
Ten  Broeck  v.  Livingston,  1  Johns. 

Ch.  357 520 

Tenney  v.  St.    Bank,  20  Wi.sc.    152. 

532,  540 

Tesson  v.  Atlantic  Ins.  Co.,  40  Mo. 

33 333,  336,  345 

Tewsksbury  v.  Howard   (Ind  ),   37 

N.  E.  355 129 

Texas  &  P.  R.  Co.   v.  Marshall,  136 

U.  S.  393 30,     31 

Texas,    etc.,   Ry.    Co.    v.    Rust,  17 

Fed.  Rep.  275 28 

Thames   Plate   Glass   Co.  v.  Land, 

etc.,  Tel.  Co.,L.  R.  11  E<i.  248..  232 
Thaxter  v.  Sprague.  159  M;u^s.  397.  436 
Thayer  v.  Middlesex  Mut.  Ins.  Co., 

10   Pick.  326 95 

v.  Star  Mining  Co.,  105  111. 

540 28.  410,  468 

V.  Torrey,  37  N.  J.  Law, 

339  218 


Ixxxiv 


TABLE   OF  CASES   CITED. 


PAGE. 

Thomas  v.  Blackman,  1    Coll.  C.  C. 

301 86,  121,  475 

V.  Burne,  1    Dr.  &  Walsh, 

657 260 

V.  Dering,  1  Keen,  729.  .89, 

243,  254,  513,  514 
V.  Dickinson,  14  Barb.  90.  139 
V.  Griffith,  68  Iowa,  11.82,  193 
V.  Joslyn,  30  Minn.  38S...  114 
V.  McCormack,  9  Dana,  108.  324 
V.   Sheppard,    2    McCord, 

Eq.  36 258 

Thompson  v.   Blackstone,    6   Beav. 

470 252 

V.   Bruen,    46    111.    125. 

467,  479 
V.  Carpenter,  4  Barr,  132.  417 
V.  Davies,  13  Johns.  112. 

358,  367 
V.   Dulles,   5   Rich.   Eq. 

370  469 

V.  Gould,  20   Pick.   138. 

139,  159 

v.Guyon,  5  Sim.  65 429 

V.  Hawley,  14  Oreg.  199, 

207 437 

V.  Hawley,  16  Oreg,  251.  371 
V.  Leake,  1  Madd.  89.. .  68 
V.  Mauley,  16  Geo.  440.  66 
V.  Myrick,  20  Minn.  205.  416 
V.  Pittston,  etc..  Coal  Co., 

7  Phila.  617 322 

V.  Scott,  1   McCord,  32. 

150,  165, 168,  169,  193 
V.  Smith,   63  N.  Y.  301. 

389,  551,  554 
V.  Tod.  Pet.  C.  C.   380. 

159,  291,  311 
V.  "Weeks,   32   111.   App. 

642 223 

Thomson  v.  Thomson,  7  Ves.  473..   360 
Thorn   v.   Com.   of  Pub.  Wks.,  32 

Beav.  490 21 

Thornburg  v.  Cole,  27  Kan.  490 474 

Thomburgh  v.  Fish  (Mont.),  27  Pac. 

Rep.  381 12 

Thornbury  v.  Bevill,  1   Y.  &  C.  C. 

C.  554 83,     86 

Thorne  v.  Thome,  18  Ind.  462 185 

Thornett   v.   Haines,   15   M,  &  W. 

372 356,  357 


Thornton  v.  Henry,  2  Scam.  218. 

179,  199 
Thorp  V.  Keokuk  Coal  Co.,  48  N. 

Y.253 549 

Thorpe  v.  Hosford,  20  W.  R.  922..     67 
V.   Pettit,    1   C.    E.    Green, 

488 400,  431,  484.  518 

Thrall  v.  Thrall,  60  Wis.  503 163 

Throckmorton     v.      Davidson,     68 

Iowa,  643 , 223 

Thurnell  v.  Balbimie,  2   M.  &  W. 

786 213 

Thweate  v.  McLeod,  56  Ala.  375. 

304,  310 
Thynn  v.  Thynn,  1  Vern.i.296.  ...  205 
Thynne  v.  Glengall  (Lord),  2  H.  L. 

Cas.  158 140,  157 

Tibbs  V.  Barker,  1  Blackf.  58..  166,   179 

V.  Morris,  44  Barb.  138 479 

Tice  V.  Freeman.  30  Minn.  389.  120,  215 
Tiernan  v.  Gibney,  24  Wise.  190. 

218,  223 
V.  Granger,  66  111.  351 ... ,     20 
V.  Roland,   3    Harris,   429, 
415,  416,  417,  449,  450, 

469,  489,  490 
Tiffin  V.  Shawun,  43  Ohio  St.  178. 

57,  286 
Tildesley  V.  Clarkson,  30  Beav.  419.  257 
Tillett  V.  Charing  Cross  Bridge  Co., 

26  Beav.  419 223 

Tilley  v.  Thomas,  L.  R.  3  Ch.  61. 

391,  444,  445,  470 
Tillotson   v.   Gesner,   33   N.  J.  Eq. 

313 284,  286,  288 

Tilly  V.  Peers,  10  Ves.  301 272 

Tiltonv.  Tilton,  9  N.  H.  385..  136, 

145,  150,  164,  192,  196,  199,  344,  348 
Tingley  v.  Bellingham   Bay  Boom 

Co.,  5  Wash.  St.  644 106 

Tinney  v.  Ashley,  15  Pick.  546.  432,  437 

Tison  V.  Smith,  8  Tex.  147 240 

Tobey  v.  County  of  Bi-istol,  3  Story, 

800 258,  369 

V.  Foreman,  79  111.  489.. 434,  479 

Todd  V.  Gee,  17  Ves.  278 502 

V.  Taft,  17  Allen,  371 24 

Toller  V.  Carteret,  2  Vern.  495  ... .      10 
Tolson  V.  Sheard,  L.  R.  5  Ch.  D.  19.  424 

V.  Tolson,  10  Mo.  736 325 

Tomkinson  v.  Straight,  17  0.  B.  697.  153 


TABLE    OF   CASKS    CITED. 


Ixxxv 


PAGE. 

Tooke  V.  Atkins,  1  Vera.  451 362 

Toole  V.  Medlicott,  1  Ball  &  B.  393. 

153,  179,  192 

V.  Toole,  112  N.  V.  335 270 

Toor  V.  Toor,  20  Ind.  118 215 

Torrance  v.  Bolton,  L.  R.  8  Cli.  118. 

(51,  293,  295 
Torry  v.  Bank  of  Orleans,  9  Paige, 

649 353 

Towle  V.  Carmelo  Land  &  Coal  Co., 

99  Cal.  397 .546 

Towner  v.  Lucas,  13  Gratt.  705  ...   324 
V.  Ticknor,  112  111.  217.  .39,  518 
Townley  v.  Bedwell,  14  Ves.  591  ..  445 
Townsend  v.  Chapernowne,  9  Price, 

130 550,  555 

V.  Fenton,  30  Minn.  528; 
32  Minn.  482. 

145,  159,  161,  201 
V.  Hawkins,  45  Mo.  286.  192 
V.  Hubbard,  4  Hill,  351.  109 
V.  Houston,  1  Harr,  532. 

145,  159,  160 
V.  Kennedy  (S.  Dak.),  60 

N.  \V.  Rep.  164...  121 
V.  Lewis,  11  Casey,  125.  449 
V.  Vanderwerker,  21  D. 

C.  197   162 

Townshendv.  Goodfellow,  40  Minn. 

312 416 

Townshend  (Lord)  v.  Stangroom,  6 

Ves.  328 314,  319,  323,  331, 

333,  343,  427,  522 
Tracy  v.  Talmidge,  14  N.  Y.  162..  367 
Trammel  v.  Craddock  (Ala.),  9  So. 

Rep.  587.  170 
(Ala.),  13  So. 

911 137 

Traphagen  v.  Trajjhagen,  40  Bai-b. 

537  554 

Trapnall  v.  Brown,   19  Ark.  39. 

201,  204 
Treasurer  v.  Commercial,  etc.  Co., 

23  Cal.  390 24 

Treeson  v.  Bissell,  63  N.  Y.  168. ..   436 
Trefusis  v.  Clinton  (Lord),  2  Sim. 

359  ....       500 

Trela^\•ney  v.  Booth,  2  Atk.  307...   388 
Ti-emain  v.  Lining,  Wright,  644...   437 

Trevor  v.  Wood,  36  N.  Y.  307 108 

Trieberts  v.  Burgess,  1 1  Md.  452..     20 


rAGK. 

Trigg  V.  Reade,  5  Humph.  529  ....  323 

Trimmer  v.  Bayne,  9  Ves.  209 3S9 

Triplett  v.  Gill,  7  J.  J.  Marsh,  432.  333 
Tripp  V.  Bishop,  56  Penn.  St.  428. 

109,  113 

Tritton  v.  Foote,  2  Bro.  Ch.  636. ..  10 
Troughton    v.    JohtLston,    2  Uayw. 

328 358 

Troutman  v.  Gowing,  16  Iowa,  415. 

507,  529 

Trower  v.  Newcome,  3  Meriv.  704.  300 
Troyford  v.  Wareup,   Rep.  Temp. 

Finch,  310 427,  522 

Truman  v.  Truman,  79  Iowa,  506 . .  185 

Trustees  v.  Ins.  Co.,  19  N.  Y.  305..  21 

V.  Peaslee,  15  N.  II.  330..  76 

Tucker  v.  Bartle,  85  Mo.  114 79 

V.  Wood,  12  John.  190 83 

Tufts  V.  Plymouth  Gold  Mining  Co., 

14  Allen,  407 123 

Tunison  v.  Bradford,  49  N.  J.  Eq. 

210 79,  80,  156 

Turnbull  v.  Trout,  1  Hall,  336  ....  115 

Turk  V.  Ridge,  41  N.  Y.  201 549 

Turner  v.  Harvey,  Jac.  169. ..  253,  354 

V.  Letts,  20  Beav.  191 IS 

Turnpike  Co.  v.  Churchill,  6  Monr. 

427 410 

Turpin  v.  Banton,  Hardin,  312  ... .  26 

T.  Chambers,  29  Beav.  104.  513 

Tuttle  v.  Moore,  16  Minn.  123 18 

Twining  v.  Morrice,  2  Bro.  C.   C. 

326 244,255,314,418,  519 

Twiss  V.  George,  33  :Mich.  253.  190,  192 
Twistleton  v.   Grithth,  1   P.   Wms. 

310 364 

Tyler  v.  McCardle,  9   S.  &  M.  230. 

400,  403 
v.  Ontz  (Ky.),  20  S.   W.  256. 

122,  123,  444 

Tyrrell  v.  Hope,  2  Atk.  562 80 

Tyson    v.   Passmore,   2  Barr.    122. 

197,  295,  321,  348 
V.    Watts,    1    Md.    Ch.    13. 

229,  230,  237 

U. 

Underhill  v.  Allen,  18  Ark.  466, 155,  159 

V.  Horwood,  10  Ves.  209.  273 
V.  Saratoga,   etc.  R.   R., 

20  Barb.  455 414 


Ixxxvi 


TABLE    OF  CASES    CITED. 


PAGE. 

Uiiilerhill  v.  Williams,  7  Blackf.  125. 

137,  145,  179 
Underwood  v.  Hitchcox,  1  Ves.  Sen. 

279 48.     80,  207 

V.  Newport  Lyceum,  5 

B.  Mon.  129 76 

Ung-ley  v.  Ungley,   L.   R.  4  Ch.  D. 

73 185,  187 

Union  Bank  v.  Munster,  37  Ch.  D. 

51 , 3.57 

Union  Coal   Min.   Co.  v.  McAdam, 

38  Iowa,  663 244,  254 

Union  Pacific  R.  Co.  v.  C,  R.  I.  & 
P.  R.  Co  ,  51  Fed.  Rep.  309;  2  C. 

C.  A.  174;  10  U.  S.  App.  88 214 

Union  Pacific  R.  Co.  v.  McAlpine, 

129  U.  S.  305 189 

U.  S.  V.  Munroe,  5  Mason,  572 333 

V.  Noe,  23  How.  312 456 

Universalist  Soc.  v.  Dugan,  65  Md. 

460 279,  284 

University   of  Des  Moines  v.  Polk 
Cy.  etc.  Co.  (Iowa),  53  N.  W.  R. 

1080 234,  453 

Upham  V.  Ilamil.  11  R.  I.  565 317 

Upperton  v.  Nicholson,  L.  R.  6  Ch. 
436..  296,  419,  428,  468,  485,  488, 

492,  520 
Usher's  Exr.  v.  Flood,  83  Ky.  552. .  138 


Vail  V.  Nelson,  4  Rand.  478 400 

Valser  v.  Valser,  23  Miss.  378 79 

Van  V.  Corpe,  3  My.  &  K.  269 303 

Van  Buren  v.  Stocking-  (Mich.),  49 

N.  W.  Rep.  50    479 

Van  Campen  v.  Knig-ht,    63  Barb. 

205...  400,  433,  444,  449,  474,  477 

Vancouver  v.  Bliss,  11  Ves.  458 419 

Vandall  v.  S.  F.  Dock  Co.,  40  Cal. 

83 7G 

Vandenburgh  v.  Spooner,  L.  R.  1 

Ex.  316 127 

Vandenanker  v.  Desbrough,  3  Vern. 

96 549 

Van  Doren  v.  Robinson,  1  C.  E. 

Green,  256 214,  223,  479,  480 

Van  Duyne   v.    Vreeland,   1  Beas. 

142 162,  201,  269,  548 

Van  Epps  v.  Clock,  7  N.  Y.  S.  21..   167 


PAGE. 

Van  Epps  v.  Schenectady,  12  Johns. 
436 437 

Van  Ness  v.  City  of  "Washington,  4 

Pet.  232 "314 

Van  Ormand   v.    Merrill,  27  Iowa, 

476..  -. 39,  402 

Van  Schaick  v.  Third  A  v.  R.  R.,  38 

N.  Y.  346 548 

Vansittart  v.  Vansittart,  4  K.   &  J. 

62 27,  231 

Van  Trothav.  Baml)erger,  15  Colo. 

1    167 

Van  Vranken  v.  Cedar  Rapids,  etc. 

R.  R.  55  Iowa,  135 468 

Van  Zandt  v.  New   York,  8  Bosw. 

375 474,  479 

Vardeman  v.  Lawson,  17  Tex.  10..  437 
Vassar  v.  Camp,  11  N.  Y.  441 . .  90,  95 
Vassault  v.  Edwards,  43  Cal.  458. 

110,  131,  237 
Vaupell  V.  Woodward,  2  Sandf.  Ch. 

143 199 

Vawter  V.  Bacon,  89  Ind.  565 400 

Veazie  v.  Williams,  8  How.  134...  358 
Veith  V.  McMurtry,  26  Nebr.  341. 

90,  133 
Verlander  v.  Codd,  Turn.    &  Russ. 

352 121 

Vernon  v.  Keys,  12  East,  632 354 

V.  Stephens,  2  P.  Wms.  66. 

411,  443,  451 
V.  Vernon,  2  P.  Wms.  594.  ,  548 

Very  v.  Levy,  13  How.  345 21 

Vesey  v.  Elwood,  3  Dr.  &  War.  74.  393 
Vickers  v.  Hand,  26  Beav.   630... .   498 
v.  Vickers,  L.  R.  4  Eq.  529. 

213,  382 
Viele  V.  Osgood,  8  Barb.  130..   108,  109 
V.  Troy  &  B.  R.  R.,  21  Barb. 

381 26,  273,  444,  466 

Vigersv.  Pike,  8  CI.  &Fin.  562.  243,  303 
Vignolles  v.  Bowen,  12  Ir.  Eq.  Rep. 

194 414,  517 

Vincent  v.  Berry,  46  Iowa,  571 ... ,  301 
Voltz  V.  Grummelt,  44  Mich.  453..  453 
Voorhees  v.  De  Meyer,  2  Barb.  37. 

39,  304,  312,  504 
Vought  V.  William.s,  120  N.  Y.  253. 

279,  286,  287 
Vonilion    v.    States,    2  Jur.  (N.  S.) 
4S.-J 331,  333 


TABLE   OF  CASES   CITED. 


IXXXN 


PAGE. 

Vreeland  v.  Blauvelt,  23  N.  J.  Eq. 
483... -278,  281,  283, 

286,  421 
V.   Vreeland   (N.  J.  Eq.) 

31  Atl.  Rep.  3.  154,  190 
Vyse  V.  Foster,  L.  R.  7  H.  L.  318.  444 

W. 

Wack  V.  Sorber,   2  Whart.   387. 

181,  182,  183,  186 
Wadsworth  v.  INIanning-,  4  Md.  59.  368 
Wagonblast  v.  Whitney,  12  Ovag.  83. 

193,  225 
Wakeman  v.  Dodd,  27   N.   J.  Eq. 

564 201 

Walcott  V.  Watson,  53  Fed.  R.  429,  225 
Waldron  v.  Lctson,  2  McCarter,  126.  332 
Walford  v.  Gray,  13  W.  R.  335 ... .      98 

Walker  v.  Barnes,  3  Mad.  247 372 

V.  Douglass,  70  111.  445.  434,  479 
V.  East   Co.    R'y,    6   Hare, 

594 7,  43,  91,222,  232 

V.  Hill,    21   N.  J.  Eq.  191. 

55,  197,  206,  244,  400 
V.   Jeffreys,    1    Hare,    352. 
400,  431,  457,  469,  474, 

482,  492 

V.  Kee.  16  S.  C.  76 12 

V.  Kelly  (Mich.),  51  N.  W. 

Rep.  934 528 

V.  Locke,  5  Cush.  90 204 

V.  Owen,  79  Mo.  563 397 

V.  Portland  (Dk.  of),  3  Yes. 

444 362 

V.  Preswick,  2  Ves.  632 389 

V.  Sedgwick,  8  Cal.  398  . ..   346 
V.  Walker,  2  Atk.  100.  145, 

173,  203,  343 
V.  Wheatley,  2  Humph.  119.  325 
V.  Wheeler,  2  Conn.  299....   410 
Wall  V.  Minneaiiolis,  etc.,  R.  Co.  86 

Wise.  48 196 

V.  Stubbs,  1  Mad.  80 296,  300 

Wallace  v.  Brown,    2   Stockt.    Ch. 

308 139,  192,  341 

V.  Long,  105  Ind.  522 162 

V.  McLaughlin,  57  111.  53. 

413,  417,  449,  453,  520 
V.  Rappleye,  103  111.  229. 

154,  254,  268 
V.  Scoggins,  17  Oreg.  476.  142 


TAGE. 

Waller  v.  Hendon,  5  Yin.  Abr.  624.  115 
Wallis  V.  Sarel,  5  De  G.  &  8ni.  429.  500 
Walmesley  v.  Booth,  2  Atk.  27  ... .   364 
V.  Griffith,  10  Ont.  Ap. 

R.327 355 

Walpole  (Lord)  v.  Oxford  (Lord),  3 

Yes.  402 99,  140,  207 

Walsh  V.  Barton,   24   Ohio   St.    28. 

117,  129,  417,  422 
V.  Hall,  66  N.  C.  233... 278,  301 
Walter  v.  Walter,  1  Whart.  292. ...  139 
Waltei-s  V.  North   Coal,  etc.  Co.,  5 

De  G.  M.  cSi  G.  629 399 

Walton  V.  Coulson,  1   McLean,  120. 

224,  233 

V.  Wilson,  30  Miss.  576 444 

Walwyn  v.  Lee,  9  Yes.  33 14 

Wamsley  v.  Lanciaun,  GS  Ga.  556.  268 
Wankford  v.  Fotherly,  2  Yern.  322.  98 
Ward  V.  Buckingham   (Dk.    of),   3 

Atk.  385 20 

V.Jeffrey,  4  Price,  294..  485,  492 
V.  Stuart,  62  Tex.  333...  162,  169 

Wardele  v.  Cartei-,  7  Sim.  490 269 

Warden   v.    Jones,    23   Beav.    497. 

158,  188,  204 

Ware  v.  Cowles,  24  Ala.  446 324 

V.  Grand  Junct.  etc.,  2  R.  & 

My.  470 23 

Waring  v.  Ayres,    40   N.    Y.    357. 

215,  216,  226 
V.  Manchester,  etc.  R'y  Co. 

7  Ilare,  492 385 

Warner  v.  Daniels,  1  W.  &  M.   90. 

290,  304 

V.  White,  T.  Jon.  95 377 

V  Wellington,  3  Drew.  531. 

83,  84,  86,  94,  111,  121,  209 

Warrall  v.  Dunn,  5  N.  Y.  229 115 

Warren  v.  Costello  (Mo.),  19  S.  W. 

Rep.  29 238 

V.  Daniels,  72  111.  272 12 

V.  Ewing,  34  Iowa,  168 12 

V.  Hall,  41  Hun,  466 314 

V.  Richmond,  53  111.  52.. 372,  Ml 
V.  Warren,    105    111.    568.' 

146,  163,  201,  268 
V.  Warren,  112  111.  568.. ..    170 
Washburn  &  Moen  Manuf.   Co.    v. 
Chicago  Fence  Co.,   109   111.   71. 

25,  315,  .')45,  .546 


Ixxxviii 


TABLE   OF  CASES   CITED. 


PAGE. 

■Washburn,  etc.  Manuf.  Co.  v.  Free- 
man Wire  Co.,  41  Fed.  R.  410. ..  225 
Washington  Brewery  Co.  v.  Carry 

(Md.),  24  Atl.  Rep.  151 159 

Wason  V.  Colburn,  99  Mass.  342...  80 

V.  Fenno,  129  Mass.  405 ... .  270 
Waterhouse  v.  Stansfield,   9  Hare, 

234 10 

Waterman  v.  Meigs,  4  Cush.  497  ..  126 
Waters  v.  Bew  (N.  J.  Eq.),  29  Atl. 

R.  590..  225,236,  238,  389 
V.  Brown,  7   J.   J.   Marsh, 

123 224 

V.  Howard,  1  Md.  Ch.  112. 

13,  24,  66 
V.  Travis,    9    Johns.    450. 

448,477,  504,.  505 

Watkins  v.  Maule,  2  J.  &  W.  242. .  20 
V.  Stocket,   6   Har.    &   J. 

445 317 

V.  Turner,  34  Ark.  663...  57 

Watrous  v.  Allen,  57  Mich.  362. . 33,  69 
Watson  V.  Austin,    63    Miss.    469. 

302,  304 

V.  Coast,  35  W.  Va.  463. ..  460 
V.  Doyle    (111.),    22   N.    E. 

613 374 

V.  Mahan,  20  Ind.  223  ... .  174 
V.  Marston,  4  De  G.  M.  & 

G.230 259,  267 

V.  Reid,  1  Russ.  &  My.  236. 

469,  482,  486,  492 
V.  White  (111.),   38   N.    E. 

Rep.  902  ....433,  453,  550 

Watt  V.  Evans,  4  Y.  &  C.  Ex.  579..  160 
Watts  V.  Ainsworth,  6  L.  T.  (N.  S.) 

252 120 

V.  Kellar  (C.  C.  A.),  56  Fed. 

R.  1 238 

V.  Kinney,  3  Leigh.  293 529 

V.  Waddle,   1    McLean,   200. 

219,  238,  278,  400,  415,  450 

V.  Witt  (S.  C),  17  S.  E.  822.  166 

Waul  V.  Kirkman,  5  Cush.  823....  120 

Weat  V.  Bundy,  78  Mo.  407,  409. ..  185 

Weatherall  v.  Geering,  12  Ves.  513.  407 

Weaver's  Appeal,  115  Pa.  St.  59. . .  21 

V.  Burr,  31  W.  Va.  736.  84,    90 

V.  Shenk,  154  Pa.  St.  206.  135 

Webb,  Estate  of,  49  Cal.  542. . .  .12, 

80,  184 


PAOB. 

Webb  V.  Direct  London,  etc.  R'y  Co., 
1  DeG.  M.  &G.  521..66, 

246,  259,  260,  265,  411 
V.  Hughes,  L.  R.  10  E(i.  281. 

444,  458,  468,  469,  470 

V.  Noak,  1  Edw.  Ch.  604 ... .   362 

Weber  v.  Marshall,  19  Cal.  447 ... .   474 

Webster  v.  Blodgett,  59  N.  H.  120.  159 

V.  Brown,  67  Mich.  328  . .   135 

V.    Cecil,    30    Beav.    62. 

327,  329,  331,  336 
V.  Dillon,  3   Jur.    (N.   S.) 

432 384 

V.  Ela.  5  N.  H.  540 126 

V.   Harris,   16   Ohio,   490. 

332,  345 
V.  Tibbitts,  19  Wise.  438..  550 
V.  Webster,  27  L.  J.  Ch. 

115 188 

Weddall  v.  Nixon,  17  Beav.  160...   289 
Wedgwood  v.  Adams,  6  Beav.  600. 

259,  266 
Weed  V.  Terry,  2  Doug.  344..  171,  189 
Weems  v.  Brewer,  2  Har.   &  Gill. 

390 423 

Weingaertner  v.  Pabst,  115  111.  412.  400 

Weir  V.  Mundell,  3  Brews.  594 20 

Weise's  Appeal,  72  Pa.  St.  351...  53, 

55,  114,  258 
Welborn  v.  Sechoist,   88  N.  C.  287.  372 
Welch  V.  Moffiit,  1  Thomp.  &  C.  575.  390 
V.  Whelpley,  62  Mich.  15. 

158,  190,  234 
Welford  v.  Beazely,  3  Atk.  503.  107,  122 
Weller  v.   Weyland,   2  Grant  Cas. 

103,  527 
Welles  V.  Yates,  44  N.  Y.  525 . .  333,  345 
Welle'sley  v.  Wellesley,  4  My.  &  Cr. 

554 20,     27 

Wells  v.  Cruger.  5  Paige,  164 330 

V.  Davis,  77  Tex.  636 185 

V.  Maxwell,  37  Beav.  408. 

458,  468,  469 
V.  Millett,  23  Wise.  64..  290, 

292,  311 

V.  Smith,  2   Edw.   Ch.  78. 

410,  411,  412,  434,  436, 

453,  462,  463 
V.  Wells,  3  Ired.  Eq.  596....    466 
Welsh  V.  Bayaud,   6  C.   E.   Green, 
186 136,  167,  173,  223.  373 


TABLE   OF  CASES   CITED. 


Ixxxix 


PAGE. 

Wemple  v.  Stewart,  22  Barb.  154..  332 
Wendallv.  Hirt,  30  Hun.  3S2..17tJ,  217 

Wendell  v.  Stone,  3'.)  Hun,  382 166 

Wendover  v.  Baker  (Mo. ),  25  S.  W. 

Rep.  918 223 

Wenhatn  v.  Switzer  (C.   C.  A.),  59 

Fed.  Rep.  942 93 

Wentworth  v.  Buhler,  3  E.  D.  Smith, 

805 139 

Werden  v.  Graham,  107  111.  169, 179.  369 

Werder  v.  Cornell,  105  111.  169 479 

Wesley  v.  Thomas,  6  liar,  k,  Johns. 

24 344 

West  V.  Flannagan,  4  Md.  36. .  155, 

165,  174,  186 

V  Wayne,  3  Mo.  16 44 

Westcott  V.  Mulvane,  58  Fed.  Rep. 

305,  7  C.  C.  A.  242 435 

Western  U.  Tel.  Co.  v.   Union  Pac. 
R'y,  1  McCrary,  558,  3  Fed.  Rep. 

423 32 

Westmeath    (Lord)    v.    Westmeath 

(Ld.),  Jac.   126 27 

West  Midland  R'y  Co.  v.  Nixon,  1 

H.  &M.  176 545 

Westall  V.  Austin,  5   Ired.- Eq.   1. 

240,  423 
Westbrook  v.  Harbeson,  2  McCord 

Eq.  112 324,  349 

Westerman  v.  Means,  2  Jones,  97. 

398,  459,  479 
Western  v.  Russell.  3  V.  &  B.   187. 

106,  109,  120,  121,  239,  505 
R.  R.  V.   Babcock,  6  Met. 

346 237,  273,  329 

Westervelt  v.  Matheson,  1  Hoff.  Ch. 

37 123,  273 

Westfall  V.  Cottrils,  24  W.  Va.  763.  215 

Weston  V.  Bird,  2  W.  R.  145 326 

V.  Collins,   11  Jur.  (N.   S.) 

190 459 

Wethered  v.Wethored,  2  Sim.  183..  42 
Wetberford  v.  James,  2  Ala.  170. ..  504 
Wethwold  V.  Walbank,  2  Ves.  276.  363 
Wetmore  v.  Bruce,  118  N.  Y.  319..  419 
V.  White,  2  Caine's  Cas.  87. 

159,  166,  179 
Wetzlerv.  Duffy  (Wis.),   47   N.   W. 

Rep.  184 397 

Whaley   v.    Bagrnel,    1    Rro.    P.  C. 
345 158 


PAQB. 

Wharton  v.  Stautenburgh,  35  N.  J. 

Eq.  266 89, 124,  125,  164. 

168.  194.  385 
Whealland    v.    Silsbcis    159    Mays. 

177 436 

Wheatley  v.  Slade,  4  Sim.  126 506 

'  V.  We.stministei',  etc.  Co., 

L.  R.  9Eq.  538 387 

Whoaton  v.  Wheaton.   9  Conn.   96. 

317,  322 
Wheeler  v.  Clinton  Canal  Bk.,  Ilur. 

Ch.  449 44 

V.  Collier,  1  Mood.  &  Walk. 

123 356 

V.  D'Esterre,  2  Dow,  359. 

179,  218 
V.  Rejmolds,  66  N.  Y.  227.  207 

V.  Smith,  9  How.  55 317 

V.  Trotter.  3  Sw.  174  n. . .   370 
V.  Wheeler,  2  N,  Y.  Supp. 

496 410 

Whelan  v.  Sullivan,  102  Mass.  204. 

130,  223 
V.  Whelan,  3  Cow.  537....   277 
Whitaker  v.  Bond,   63   N.   C.    290. 

261,  275,  360 
Whitbread   v.    Brockhurst,   1  Bro. 

C.  C.  417 .. . 145, 151,  156, 157, 173,  182 
Whitchurch  v.  Bevis,  2  Bro.  C.  C. 

409 157,  1.58,  191,  196,  198,  203 

White,  In  re,  3  Sw.  108,  n 259 

V.  Butcher,  6  Jones  Eq.  231,  467 
V.  Cox,  3  Hay w.  82 ... .  257,  353 

V.  Crew,  16  Geo.  416 168 

V.  Cudden,  8  CI.  &  Fin.  766. 

114,  252 

V.  Damon,  7  Ves.  30 273 

V.  Dobson,    17   Gratt.    262. 

426,  433,  460,  521 
V.  Flora,  2  Overton,  426.  271,  353 
V.  Herman,  51  111.  243. .  130, 

215,  223,  224 

V.  Holly,  91  N.  C.  67 138 

V.  Ingram   (Mo.),   19  S.  W. 

827 187 

V.  McGannon,  29  Gratt.  511.  273 
V.  O'Bannon  (Ky.),   5  S.  W. 

Rep.  346 138 

V.  Patterson,    139    Pa.    St. 

429 476 

V.  Proctor,  4  Taunt.  209 .. . .    117 


%c 


TABLE   OF  CASES   CITED. 


PAGE . 

White  V.  Thompson,  1  Dev.  &  Bat. 

Eq.  49S 273,  277 

V.  "Watkins,  23  Mo.  423.  145, 

150,154.156,164,109,546,  552 
V.  Williams,    48    Barb.    222. 

315,  334 
V.  Wilson,  0  Blackf.  449  ... .    333 
White  Mountains  R.  R.  v.  Bay  State 

Co.,  50N.H.  57 21 

Whitehead  v.  Kennedy,   69   N.   Y. 

462 353 

Whitehill  v.  Lowe  (Utah),  37  P.  589.  225 
Whitehoi-n  v.  Cranz,  20  Nebr.  392.  553 

AVhitney  v.  Burr,  115  111.  289 25 

AVhitsitt  V.  Trustees   Presbyterian 

Church,  110  111.  125 185 

Whitwood  Chemical  Co.  v.   Hard- 
man  (1891),  2  Ch.  416 31 

Wible  V.  Wible,  1  Grant  (Pa.),  406.  166 

Wicks  V.  Hunt,  Johns.  372 .''>34 

Wiegert  v.  Franck,  56  Mich.  200..  215 
Wig-tjins  V.  McDonald,  IS  Cal.  126.  548 
Wigfgleswor'ih  v.  Steers,  1   Hen.  & 

Mumf.  70 257 

Wightman    v.'  R,eside,    2    Dessau. 

578 448 

Wighley  v.    Blackwal,    Cro.    Eliz. 

780 376 

Wilbourn  v.  Bishop,   62   Miss.  341. 

211,  213,  225,  230 
Wilbur  V.    Howe,    8   Johns.    444. 

358,  362 
Wilde  V.  Fox,  1  Rand   165 ... .  174,  175 
V.  Gibson,  1   H.  L.  Cas.  605. 

290,  292,  353,  359 
Wildey  V.  Bonney,  31  Miss.  634...  171 
Wilkinson  v.  Clements,  L.  R.  8  Ch. 

96   .... 402 

V.  Hartley,  15  Beav.  183.  491 
V.  Torking-ton,  2  Y.  &  C. 

Ex.  726 399 

Wilkes  V.    Burns,    60    Md.   64. 

223,  268 
V.  Davis,   3  Meriv.    507. 

213,  369,  382 
V.  Georgia  Pac.  R.  R.  Co.  79 

Ala.  180 234,  235,  238 

V.  Smith,  10  M.  &  W.  360..   390 
Willan  V.  Willan,  16  Ves.  83. .   243, 

314,  320,  333 
Willard  v.  Ford,  16  Neb.  543..  28,     30 


TAGE. 

Willard  v.  Taylor,  8  Wall.  557..  10, 
11,  48,  55,  57,  60,  236, 
245,  249,  258,  261,  267, 

397.  545,  550 
Willcox  V.  Bellaers,  T.  &  R.  491. ..  279 
Willey  V.  Robert,  27  Mo.  388  ...... .    120 

William  v.  Bacon,  2  Gray,  387 124 

Williams  v.  Brisco,  22   Ch.  D.  441. 

88,  126,  410 
V.  Carpenter,  14  Colo.  477.  18 
V.  Champion,  6  Ham.  169.  504 
V.  Dakin,  22  Wend.  201..  69 
V.    Edwards,  2    Sim.   78. 

462,  506,  513 
V.  Evans,  L.  R.   19   Eq. 

547 169,  175,  179 

V.   Glenton,   L.   R.   1    Ch. 

200 498 

V.   Hart,   116   Mass.    513. 

474,  479 
V.  Howard,  3  Murphy,  74.  17 
V.  Landman,   8  Watts   & 

S.  56 169,  175 

V.  Lewis,  5  Leigh,  686...  477 
V.  Mansell,  19  Fla.  .546..  371 
V.  McGuire,  60  Mo.  254..  12 
V.  Morris,  95    U.  S.    444. 

137,  154,  210,  213 
V.  Pope,  Wright,  406  ....  166 
V.  Schembri,  44  Minn.  250.  279 
V.  Staake,  2  B.  Mon.  196.  476 
V.  Vreeland,  29  N.  J.  Eq. 

417 205 

V.  Williams,  2  Sw.  253.  32,  45 
V.  Williams,  17  Beav.  213.  93 
V.  Williams,  3  Mer.  157....  379 
V.  Williams,  50  Wis.  311.  474 
Williamson  v.    Codrington,  1    Ves. 

Sen.  514 80 

V.  Gihon,  2  Sch.  &  Lef . 

355 362 

V.    Woolton,    3    Drew. 

210 225,  259 

Willingham  v.  Hooven,  74  Ga.  233.   385 

V.  Joyce,  3  Ves.  168...   407 

Willink  v.  Vanderveer,  1  Barb.  599.  201 

Willis  v.  Evans,  2  Ball  &  B.  228...  198 

V.  Forney,  1  Busbee  Eq.  256. 

226,  462 

V.   Henderson,   4   Scam.    13. 

332,  345 


TABLE    OF  CASES   CITED. 


XCl 


PAGE. 

Williston  V.  Williston,  41  Barb.  635. 

185,  237,  478,  488 
Wills  V.  Stradling,  3  Ves.  378..  145, 
153,  155,  164,  165,  173,  174.  175,  179 

Wilmer  v.  Farris,  40  Iowa,  309 173 

Wilmot  V.  Wilkinson,  6  B.  &  C.  506.  403 
Wilson  V.  Bajitist   Education   Soc, 

10  Barb.  308 81 

V.  Campbell,  5  Gilm.  383. ..   369 
V.  Chicago,  etc.,   R.   R.,    41 

Iowa,  443 105 

V.  Clark,  1  W.  &  S.  554....    112 

V.  Clements,  3  Mass.  1 93 

V.  Cox.  50   Miss.  133 504 

V.  Ewig  (Kan.),  24  Pac.  Rep. 

80   468 

V.  Furness  R'y  Co.,  L.  R.  9 

Eq.  28 29,     30 

V.  Keatin^s  7  W.  R.  484 ....     22 
V.  Lineburger,  92  N.  C.  547.  400 
V.    Northampton,    etc.,    R'y 
Co.,  L.  R.  9   Ch.    279. 

3,  29,  225 
V.  Short,  6  Hare,  366.  306,  309 
V.    Tappan,    6   Ham.    172. 

449,  489 
V.  Union  Sav.  Ass'n,  42  Fed. 

Rep.  421 400 

V.  Watts,  9  Md.  436 197 

V.  West  Hartepool   R'y  Co., 
2  De  G.   J.  &   S.    475. 
29,  116,  143,  149,  179,  194 
V.  WiUiams,   3   Jur,  (N.  S.) 

810 504,  516,  523 

V.  Wilson,  1  H.  L.  Cas.  538.     27 
Wilson's  Estate,  7  Pa.  Co.  Ct.  Rep. 

459 554 

Wilton   V.    Harwood,    23   Me.   131. 

137,  179 
Wimbish  v.  Building  Ass'n,  69  Ala. 

575 389,  549 

Wineberley  v.  Bryan,  55  Geo.  198.  167 
Winch  V.  Winchester,  1  V.  &  B.  375. 

331,  343,  427,  428,  522 
Winchell  v.  Wiuchell,  100  N.  Y.  159, 

163  163 

Wingate  v.  Dail,  2  Harr.  &  J.  76..    192 
V.    Hamilton,  7   Ired.    73. 

507,  529 

Winn  V.  Albert,  2  Md.  Ch.  169....    136 

V.  Henry,  84  Ky.  48 123,  215 


I'AOE. 

Winne  v.  Ileynolils,  6  Paige,  407. 

449,  4S'.t.  520 
Winnipis-seogee,  etc.,  Co.  v.  Peiley, 

46  N.  II.  «:{ 333 

Winter  v.  Blades,  2  S.  &  S.  393  .. . .    497 
V.  Goebner  (Colo.  App.),  30 

P.  51 225 

V   Trainor   (111.),  37   N.  E. 

869   126 

Wintermute   v.   Snyder,  2    Green's 

Ch.  489 271,  317 

Winton  v.  Sherman,  20  Iowa,  295..  436 
Wisconsin,  etc.,  R  y  Co.  v.  Brahain, 

71  Iowa,  484 234 

Wise  V.  Ray,  3  Green,  430 107 

Wiseman  v.  Roper,  1    R<;p.   in  Ch. 

154 42,     80 

Wistar's  Appeal,  80  Pa.  St.  484  ... .      12 
Wiswall   V.   McGowan,  1    Hoff.  Ch. 

126 226,  469,  502,504,  531, 

537,  540 
Wiswell  V.  Tefift,  5  Kans.  263...  167,  223 
Withy  V.  Cottle,  1  S.  &  S.  174. 

6,  7,  25,  232,  456 
Witman  Min.  Co.  v.  Baker,  3  Nev. 

386 76 

Witter  V.  Briscoe,  13  Ark.  422 437 

Wolf  V.  Great  Fa]ls,etc.,Co.  (Mont.), 

38  Pac.  Rep.  115 478 

Wolfe  V.  Frost,  4  Sandf  Ch.  72. 

154,  156,  165,  181 

V.  Leey.ster,  1  Hall.  140 358 

Wolford   V.   Herrington,   24   P.   F. 

Smith.  311 196,  203 

WoUensakv.  Briggs,  20  111.  App.  50.  223 
119  111.  453....   372 
Wollums   V.  Horseley    (Ky.),  20  S. 

W.  Rep.  781 257 

Wonson  v.  Teuno,  129  Mass.  405. ..  479 

Wood  V.  Abrey,  3  Mad.  417 269 

V.  Bernal,  19  Ves.  220... 487. 

492,  516 

V.  Cone,  7  Paige,  472 388 

V.  Dickey  (Va.),  17  8.  E.  Rep. 

818 238 

V.  Farmare,  10  Watts,  195. 

164,  166,  167.  193 
V.  Griffith.  1  Sw.  54.. 26,  365,  505 

v-  Jones,  35  Tex.  64 159 

V.  Keyes,  8  Page,  419 388 

V.  Machu,  5  Hare,  158 493 


XCll 


TABLE   OF  CASES   CITED. 


PAGE. 

Wood  V  Midgley,  5  De  G.  M.  &  G. 

41 121,  124,  207 

V.  Patterson,  4  Md.  Ch.  335.  322 
V.  Perry,  1  Barb.  114...  400,  546 

V.  Price,  46  111.  439 317 

V.  Richardson,  4  Beav.  174..   252 
V.  Rowcliffe,  3  Hare,  304.  14,     19 

V.  Savage,  2  Doug.  316 136 

V.  Scarth,  2  K.  &  J.  33. 

120,  331,  338 
V.  Shepherd,  2  Pat.  &  Heath, 

442 26 

V.  Thornby,58Ill.  464..  173,  180 
V.  White,  4  My.  &  Cr.  460..  545 
Woodbury  v.  Gardner,  77  Me.  68. 

167,  201,  207 
V.  Ludy,  14  Allen,  1  . . .   528 
Woodbury  Sav.  Bank  v.   Ins.    Co., 

31  Conn.  517 333,  336 

Woodcock  V.  Bennett,  1  Cow.  711. 

304,  312,  372,  538,  540 
Wooden  v.  Haviland,  18  Conn.  101. 

332,  344 
Woodhouse  v.  Shipley,  2  Atk.  535.  362 
Woodroffe  v.  Farnham,  2  Vem.  291.  361 
Woodruflfv.  Erie  R'y  Co.,  93  N.  Y. 

609  24 

V.  Woodruff,  44  N.  J.  Eq. 

356 213 

Woods  V.  Dille,  11  Ohio,  455  199 

V.  Evans,  113  111.   186. 

55,  223,  268 

V.  Hall,  1  Dev.  Eq.  415 356 

Woodson  V.  Barrett,  2  Hen.  &  Mun. 

80 361 

V.  Scott.  1  Dana,  470  ....    436 
Woodward  v.  Aspinwall,   3  Sandf. 

272 25,  109,  237 

V.  Gyles,  2  Vem.  119..     69 
V.  Harris,  2  Barb.  439. 

229,  237,  502,  540 
V.  Miller,  2  Coll.  C.  C. 

279  356 

Woody  V.  Old  Dominion  Ins.   Co., 

31  Gratt.  362  21 

Wooldridge  v.  Hancock  (Tex.),  6  S. 

W.  Rep.  818 572 

Woollam  V.  Hearn,  7  Ves  211  ....  343 
Worden  V  Christ,  106  111.  326  ....  410 
Workman  v.  Guthrie,  5  Casey,  495. 

155,  170,  174,  325,  348 


PAOB. 

Worley  V.  Frampton,  5  Hare,  560 . .  406 
V.  Tuggle,  4  Bush.  168. 

138,  319,  345,  348 
Wormley   v     Wormley,    8  Wheat. 

421 253 

Worrall   v.    Munn,    5   N.  Y.  229 

109,  388 

Worth  V.  Case,  42  N  Y.  362 271 

Worthington  v  Lee,  61  Md.  530...     10 
V.  Warrington,  5  C.  B. 

635 219 

Worthington  Brick  Co.   v    Bull,  44 

Hun,  462 108,  120 

Wright  V.  Bell,  5  Price,  328. 

8,  25,  44,     66 

V.  Bigg,  15  Beav.  592 96 

V.  Cobb,  5  Sneed,  143 135 

V.  Howard,  1  S.  &  S.  190. 

418,  457,  519 

V.  Jones,  105  Ind.  17 171 

v.  King.  Harring  Ch.  12...   109 
V.  Packet,  22  Gratt.  370. 

12,  147,  151 
V.  Thompson,  14  Tex.  558. .  391 
V.  Tinsley,  30  Mo.  389  ....  268 
V.  Weeks,  3  Bosw.  372....   133 

V.  Wilson,  2  Yerg.  294 271 

V.  Wright,  1  Ves.  Sen.  409.     42 
V.    Wright,   31   Mich.    380. 

192,  223 

V.  Young,  6  Wise.  127 504 

Wrigley  v.  Sykes,  21  Beav.  337.. ..   283 

Wristen  v.  Bowles,  82  Cal.  84 122 

Wuesthoff   v.    Seymour,    7   C.    E. 

Green,  66 310 

Wurtzburger  v.  Meric,  20  La.  An. 

415 332 

Wyche  v.  Greene,  16  Geo.  49 332 

Wycherley  v.  Wycherley,  2  Eden. 

177 ". 80 

Wycombe  R'y  Co.  v.   Downinglon 

Hosp.,  L.  R.  1  Ch.  268 61,  335 

Wylson  V.  Dunn,  34  Ch.  D.  589. 

120,  215,  416 

Wynn  v.  Garland,   19  Ark.  23 186 

V.  Morgan,  7  Ves.  202 489 

V.  Smith,  40  Geo.  457 12 

Wynne  V.Price,  3  DeG.  &;Sm.  310.     22 
Wyville   v.    Bishop    of   Exeter,    1 
Price,  292 393,  398 


TABLE   OF  CASES   CITED. 


XCUl 


Y.  PAGE. 

Yard  v.  Larinson,  39  N.  J.  Eq.  388.   286 
Yates  V.  Compton,  2  P.  Wins.  308.  388 
V.  De  Bog-ert,  56  N.  V.  526. .     76 
Yeaby  v.  Grig^by,  9  Leig-h,  387. 

100,  115 
Yeator  v.  Haines,  43  N.  II.  26  ....  325 
Yerkes  v.  Richards,  153  Pa.  St.  646.  238 
Yoakum  v.  Yoakum,  77  111.  85  ... .      12 

Yost  V.  Devault,  9  Iowa,  60 528 

Youell  V.  Allen,  18  Mich.  108 372 

Young  V.  Burton,   1  McMullen  Eq. 

256   17 

V.  Clarke,  Prec.  in  Ch.  538. 

276,  352 
V.  Coleman,  43  Mo.  179....  333 
V.  Collier,  31  N.  J.  Eq.  444.  286 

V.  Covitt,  8  Johns.  23 296 

V.  Daniels,  2  Iowa,  126. 

433,  435,  446,  467 


PAGE. 

Young  V.    Glendenning,    6    Wafts, 

509  185,  186 

V.  Hughes,  32  N.  J.  Ecj.  372.  256 

V.  Miller,  10  Ohio,  85 319 

V.  Paul,  2  Stock.  Ch.  401. 

109,  373.  507,  529 
'v.  Rathbone.  1  C.  E.  Green, 

224 279,  465 

V.  Young,  45  N.  J.  Eq.  27. 

145,  185,  482 

V.  Young,  51  N.  J.  Eq.  491.  478 

Yulee  V.  Canova,  11  Flor.  9 13 

Z. 

Zebley  v  Sears,  38  Iowa,  507. 

374,  504,  507,  529 
Zcringue  v.  Texas  &  P.  R.  Co.,  34 

Fed.  R.  239 225 

Zimmerman  v.  Wangert,  31  Pa.  St, 

401 170 


SPECIFIC  PERFOMANCE  OF  CONTRACTS. 


INTEODUOTORY  CHAPTER. 

Primary  and  remedial  rights. 

Section  1.  The  Specific  Performance  of  Contracts  is  purely  a 
remedy  administered  by  courts  having  equitable  jurisdiction,  and 
the  right  to  it,  held  and  enforced  by  a  contracting  party,  is  purely  a 
remedial  right.  All  the  private  rights  and  duties  comprised  in  the 
municipal  law — except  in  that  very  small  portion  which  simply 
defines  the  status  of  persons — are  separated,  from  their  intrinsic 
nature,  into  two  generic  classes,  primary  and  remedial — or,  to  use  the 
somewhat  fanciful  nomenclature  of  Bentham  and  his  school,  substan- 
tive and  adjective.  Primary  rights  and  duties  flow  from  the  com- 
mands or  rules  which  constitute  the  great  body  of  the  private  law ; 
they  are  the  objects  and  ends  for  which  the  law  itself  is  established ; 
they  apply  to  and  regulate  all  the  normal  relations  of  the  individual 
with  his  fellows ;  they  do  not  result  from  any  delicts  or  violations  of 
the  law,  but  exist  prior  to  and  wholly  independent  of  all  such  wrongful 
acts  or  omissions.  If  obedience  to  the  law  were  absolutely  perfect, 
these  primary  rights  and  duties  are  the  only  ones  with  which  juris- 
prudence would  be  practically  concerned.  Disobedience,  however,  is 
possible  and  constant ;  primary  rights  are  violated  and  primary  duties 
unperformed.  Hence  there  arises  the  second  grand  division  of 
remedial  rights  and  duties,  which  spring  immediately  and  exclusively 
from  those  acts  and  omissions  which  are  violations  of  primary  rights 
and  duties,  that  is,  from  delicts,  wrongs,  or  offenses.  A  remedial 
right  is,  therefore,  a  right  to  obtain  some  remedy,  confen-ed  by  the 
law  upon  the  holder  of  a  primary  right  which  has  been  broken,  and 
a  remedial  duty  is  the  corresponding  duty  to  grant  or  permit  such 
remedy,  devolving  upoti  the  WTong-doer,  as  the  consequence  of  his 
delict.  (1)     In  the  English   system  of  administering  justice,  which. 

^1)  See  Austin,  Lect.  on  Jurisp.  vol.  2,  pp.  450-i53  (Kna.  ed.  of  1863);  Pomeroy 
on  Remedies,  §§  1,  2.  , 


52  •  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

prevails  throughout  the  United  States,  all  civil  remedies  and  tne 
corresponding  remedial  rights,  except  a  very  few  special  kinds,  are 
separated  into  two  divisions,  respectively  denominated  the  legal  and 
the  equitable,  because  during  the  integrity  of  the  system,  while  its 
peculiar  methods  were  kept  unaltered,  and  before  the  sweeping 
reforms  introduced  by  modern  legislation,  the  one  class  were  adminis- 
tered by  the  courts  of  law  alone,  and  the  other  by  the  courts  of 
equity.  The  change  recently  made  in  the  very  principles  of  the  old 
procedure,  which  has  consolidated  the  two  courts  into  one  tribunal, 
and  which  permits  legal  and  equitable  remedial  rights  to  be  enforced 
and  legal  and  equitable  remedies  to  be  obtained  in  the  same  action, 
will  doubtless  tend  to  obliterate  the  line  which  has  hitherto  dis- 
tinguished the  two  classes  in  our  legal  nomenclature,  although  all  the 
individual  remedies  themselves  will  remain  unaffected  by  the  statu- 
tory modifications  which  relate  solely  to  the  means  of  obtaining  them 
through  judicial  action. 

Remedies. 

Sec.  2.  In  every  contract,  however  simple  or  however  complicated, 
the  primary  right  of  the  party  who  is  to  receive  the  benefit,  is  always 
a  right  to  have  the  very  thing  done  or  omitted  which  the  other  party 
has  promised  to  do  or  to  omit — a  right  to  the  specific  acts  or  forbear- 
ances for  which  the  agreement  stipulates ;  and  the  corresponding- 
primary  duty  of  the  party  on  whom  the  obligation  rests,  is  to  do  or  to 
omit  exactly  what  he  has  undertaken  to  do  or  to  omit.  In  other 
words,  the  terms  of  the  contract  itself  in  every  instance  define  the 
nature  and  extent  of  the  primary  rights  and  duties — varying  beyond 
the  possibility  of  description  or  enumeration — which  result  from  it. 
If  the  contract  is  merely  for  the  payment  of  a  certain  sum  of  money, 
the  right  is  to  receive  such  payment;  if  it  is  for  the  conveyance  of  a 
tract  of  land,  the  right  is  to  obtain  such  conveyance ;  if  it  is  for  the 
erection  of  a  house  in  a  specified  manner,  the  right  is  to  have  the 
house  erected  in  that  manner ;  if  it  is  for  prescribed  personal  services 
to  be  rendered  by  the  other  party,  the  right  is  to  those  very  services 
as  stipulated;  and  so  on  through  the  numberless  forms  in  which 
persons  may  bind  themselves  by  their  agreements.  When,  however, 
the  contract  is  broken,  by  the  party  upon  whom  the  obligation  of  it 
rests,  and  the  primary  right,  whatever  it  may  be,  of  the  other  party 
is  invaded,  a  remedial  right  at  once  accrues  to  him,  and  a  remedial 
duty  is  imposed  upon  the  former,  both  of  which  the  law  will  enforce 
by  means  of  a  judicial  proceeding.  From  the  dual  nature  of  the 
English  law  courts,  from  the  highly  technical  and  arbitrary  forms  of 
its  actions  and  pleadings,  and  no  doubt  from  a  certain  narrowness  and 
2 


INTRODUCTORY  CHAPTER.  6 

rigidity  which  pervaded  the  entire  system  itself,  the  common  hiw 
gave  and  still  gives  but  one  kind  of  remedy,  one  species  of  remedial 
right  and  duty  for  the  breach  of  all  contracts.  This  single  remedy 
is  a  sum  of  money  paid  by  the  wrong-doer;  this  single  remedial 
right  is  the  right  to  compel  such  payment ;  this  single  remedial  duty 
is  the  duty  to  make  such  payment.  If  ^he  contract  consists,  on  the 
one  side,  simply  of  a  promise  or  obligation  to  pay  a  delinite  sum  of 
money — in  other  words,  if  it  creates  a  debt — the  remedial  right  of 
the  creditor  is  identical  with  his  primary  right ;  and  the  remedy  is 
in  reality  a  specific  performance.  In  all  other  possible  contracts,  the 
remedy  is  in  the  nature  of  damages  given  purely  as  a  compensation, 
and  the  remedial  right  is  plainly  a  substitute,  or  rather  an  equivalent, 
for  the  primary  right  which  has  been  violated. (1)  This  legal  remedial 
right  is  universal  and  absolute.  Whenever  a  contract,  valid  and 
binding  at  law,  has  been  broken,  the  right  to  recover  either  the  debt 
or  the  compensatory  damages  in  some  amount,  although  perhaps  only 
nominal,  invariably  arises,  and  will  constitute  a  sufficient  ground  of 
action  in  a  court  of  law. 

Sec.  3.  In  the  innumerable  variety  of  relations  incident  to  modern 
society,  contracts  will  necessarily  be  made  for  whose  breach  this  mere 
pecuniary  payment  would  be  an  utterly  inadequate  and  often  imprac- 
ticable relief ;  and  a  system  of  municipal  law,  which  provided  no  other 
kind,  would  fail  in  maintaining  and  dispensing  the  justice  which  is 
the  great  object  of  all  enlightened  jurisprudence.  As  the  law  courts 
were  either  unable  or  unwilling  to  deviate  from  the  methods  which 
they  had  originally  adopted,  the  court  of  chancery  was  compelled  to 
supply  the  deficiency,  and  to  administer  the  only  remedy  which  is 
just  and  adequate  and  even  practicable  in  many  classes  of  violated 
agreements.  Hence  there  arose  at  an  early  day  the  jurisdiction  of 
chancery  to  enforce  the  equitable  remedy  of  specific  performance,  as 
applied  to  contracts. (2)     It  consists  in  the  contracting  party's  exact 

(1)  See  language  of  V.  C.  Stuart,  in  Ord  v.  Johnston,  1  Jur.  N.  S.  10G3,  1004. 

(2)  The  nature  and  object  of  this  equitable  remedy  was  summed  up  in  one 
sentence  by  Ld.  Chan.  Selborne,  in  the  recent  case  of  Wilson  v.  Northampton, 
etc.  R'y  Co.,  L.  R.  9  Ch.  279,  284  :  "The  principle  which  is  material  to  be  con- 
sidered is,  that  the  court  gives  specific  performance  instead  of  damages,  only 
when  it  can  by  that  means  do  more  perfect  and  complete  justice."  The  founda- 
tion and  measure  of  the  jurisdiction  is  the  desire  to  do  justice,  which  the  legal 
remedy  would  fail  to  give.  This  justice  is  primarily  due  to  the  plaintiff,  but  not 
exclusively,  for  the  equities  of  the  defendant  are  also  taken  into  consideration  and 
protected.  Sjiecific  performance  is  therefore  a  cojiscioics  attempt  on  the  part  of 
the  court  to  do  cotnplete  justice  toboth  the  parties  loith  respect  to  all  the  juridical 
relations  groichir/  oaf  of  the  contraH  heiwcen  them. 

3 


4  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

fulfillment  of  the  obligation  which  he  has  assumed — in  his  doing  or 
omitting  the  very  acts  which  he  has  undertaken  to  do  or  omit.  The 
remedial  right  and  duty  are  thus  made  identical  with  the  primary 
right  and  duty,  and  the  party  is  thereby  deprived  of  the  option, 
which  the  law  practically  gives  him,  to  disregard  the  actual  obliga- 
tion by  which  he  is  bound,  and  to  pay  a  sum  of  money  in  place 
thereof.  While  law  and  equity  remained  in  their  original  condition, 
as  two  distinct  and  partially  independent  systems,  the  remedy  of 
specific  performance  could  only  be  obtained  by  means  of  a  suit 
brought  for  that  purpose  in  a  court  possessing  the  equity  jurisdiction. 
Under  the  reformed  procedure  it  may  still  be  obtained  by  a  party 
plaintiff  in  a  similar  manner;  but  it  will  also  be  granted  to  the 
defendant  in  a  legal  action  who  sets  forth  a  proper  case  for  the  affirm- 
ative equitable  relief  in  his  answer  or  counterclaim. 

Sec.  4.  The  right  to  this  equitable  remedy,  however,  is  neither 
universal  nor  absolute.  Specific  performance  has  not  supplanted  the 
legal  relief  of  compensation,  nor  has  it  been  extended  to  all  kinds  of 
contracts.  It  is  strictly  an  ancillary  and  supplementary  remedy,  and 
is  confined  to  those  classes  of  agreements  for  whose  breach  the  mere 
payment  of  pecuniary  damages  is  acknowledged  to  be  either  imprac- 
ticable or  inadequate.  The  reasons  which  first  led  the  court  of 
chancery  to  interfere  and  specifically  enforce  the  terms  of  any  con- 
tract, have  been  steadily  kept  in  view  by  the  tribunals  of  equitable 
jurisdiction  in  all  their  subsequent  applications  of  the  doctrine  to  new 
relations  and  under  new  circumstances,  and  have  constantly  guided 
and  restrained  them  in  the  administration  of  this  particular  branch 
of  their  judicial  functions.  Fm^thermore,  the  right  to  the  remedy  of 
specific  performance  is  not  absolute,  even  within  the  species  of  con- 
tracts to  which  it  has  been  confined.  In  the  common  but  somewhat 
misleading  language  of  the  decided  cases,  it  is  said  to  be  "  discretion- 
ary." The  exact  meaning  of  this  term,  or  rather  the  conditions  and 
limitations  which  it  is  intended  to  express,  will  be  fully  discussed 
and  explained  in  the  subsequent  chapters ;  it  is  enough  now  to  say 
that  courts  may  be  prevented  or  deterred  from  decreeing  the  specific 
performance  of  a  valid  and  binding  contract  by  circumstances  and 
contingencies  connected  with  its  subject-matter,  its  terms,  or  the 
relations  of  its  parties  with  each  other,  or  with  third  persons,  which 
would  not  constitute  the  slightest  obstacle  or  objection  to  the  recoveiy 
of  a  judgment  for  damages  in  courts  of  law.  In  the  absence,  however, 
of  any  of  these  circumstances  or  contingencies,  it  may  be  said  to  be 
as  much  a  matter  of  course  for  courts  of  equity  to  specifically  enforce 
4 


INTRODUCTORY   C  IT  AFTER.  O 

certain  varieties  of  agreements — especially  those  for  the  sale  of  lands 
— as  for  these  courts  to  grant  any  other  relief  within  the  range  of  their 
jurisdiction.  The  two  propositions  which  have  been  thus  stated  in  a 
general  manner,  that  specific  performance  is  not  univei'sal,  but  is  an 
equitable  remedy  ancillary  and  siipjdenientary  to  the  legal  relief  of 
damages,  and  that  it  is  not  legally  absolute  but  discretionary  to  the 
extent  of  being  controlled  by  equitable  considerations,  are  funda- 
mental ;  from  them  are  derived,  more  or  less  directly,  nearly  all  the 
subordinate  rules  which  make  up  the  head  of  ecjuity  jurisdiction,  to 
be  discussed  in  the  present  work. 

Sec.  5.  The  discussion  of  the  principles  and  doctrines  which  I  have 
thus  briefly  indicated,  will  be  pursued  in  the  following  order:  I.  The 
nature,  extent,  and  limitations  of  the  remedial  right  to  a  specific 
performance  of  contracts.  II.  The  nature,  elements,  and  incidents 
of  contracts,  in  order  that  they  may  be  specifically  enforced.  III. 
Acts  or  omissions  of  the  parties,  and  other  facts,  done  or  occurring 
subsequently  to  the  conclusion  of  the  contract,  which  affect  the  right 
to  a  specific  performance.  IV.  Rules  of  procedure,  which  are  peculiar 
to  the  suit  for  a  specific  performance,  and  special  statutory  provisions 
of  the  various  states,  either  regulating  the  general  jurisdiction  or 
prescribing  summary  proceedings  in  certain  cases. 


SPECIFIC   PKRFORiMANCE    OF   CONTRACTS. 


CHAPTER  I. 

GENERAL    NATURE,    EXTENT    AND    LIMITATIONS    OF    THE    RIGHT    TO    A 
SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

SECTION    I. 

Is  an  ancillary  and  supplejneritary  equitable  remedy. 
Classes  of  contracts  to  -which  it  applies. 

Sec.  6.  All  contracts  may  be  reduced  to  three  forms.  First.  Where 
there  is  simply  a  promise  to  pay  money  on  one  side  in  consideration 
of  a  similar  payment  or  promise  to  pay  on  the  other.  Second.  Where 
there  is  a  promise  to  do  or  to  omit  some  act  or  acts  on  one  side,  in 
consideration  simply  of  a  promise  to  pay  or  a  payment  of  money  on 
the  other ;  and  Third.  Where  there  is  a  promise  to  do  or  to  omit  some 
act  or  acts  on  one  side,  in  consideration  of  the  doing  or  the  undertak- 
ing to  do  certain  acts,  which  may,  perhaps,  include  a  money  payment 
on  the  other.  It  is  very  plain  that  in  all  contracts  falling  within  the 
first  class,  which  only  call  for  a  pecuniary  payment  from  either  party, 
the  legal  remedy  of  a  money-judgment  will  always  be  possible  and 
siitiicient,  and  there  will  be  no  occasion  for  invoking  the  interposition 
of  equity.  Specific  performance  is  confined  to  agreements  of  the  two 
other  classes.  In  those  which  form  the  second  division,  it  might  be 
supposed  from  the  general  principles  heretofore  stated,  that  only  the 
party  who  is  to  receive  the  benefit  of  the  acts  or  omissions  promised 
by  the  other,  could  resort  to  equity  and  enforce  their  specific  per- 
formance according  to  the  terms  of  the  undertaking,  while  the  party 
who  is  to  receive  the  benefit  of  the  money-payment  would  be  left  to 
his  legal  remedy — the  recovery  of  a  money  judgment  in  a  common- 
law  action.  This  supposition,  however  logical  it  may  appear,  is  pre- 
vented by  a  well  established  doctrine  of  equity,  that  the  right  to  a 
specific  performance,  if  it  exists  at  all,  is,  and  necessarily  must  be, 
mutual ; — in  other  words,  it  is  and  must  be  held,  and  be  capable  of 
being  enjoyed  alike  by  both  parties  in  every  agreement  to  which  the 
jurisdiction  extends. (1)  As  a  familiar  example,  in  the  simplest  form 
of  contract  for  the  sale  of  land,  when  the  vendor  agrees  to  convey 
and  the  purchaser  merely  promises  to  pay  a  certain  sum  as  the  price, 
since  the  latter  may,  by  a  suit  at  equity,  compel  the  execution  and 
delivery  of  the  deed,  the  former  may  also,  by  a  similar  suit,  enforce 
the  undertaking  of  the  vendee,  although  the  substantial  part  of  his 

(1)  This  docti"ine  of  mutuality  will  be  fully  discussed  in  subsequent  sections. 
It  is  sufficient  now  to  cite  a  few  cases  in  which  it  is  recog-nized  and  enforced. 
Adderley  v.  Dixon,  1  S.  &  S.  607  ;  Withy  v.  Cottle,  1  S  &  S.  174  ;  Kennedy  v, 
Wexham,  6  Mad.  3.55,  337  ;  Cogent  v.  Gibson,  33  Beav.  557  ;  Old  Colony  R.  R.  v. 
Evans,  6  Gray,  25 ;  Cook  v.  Grant,  16  S.  &  R.  198,  209  ;  Brown  v.  Haff,  5  Paige, 
235 ;  Phillips  v.  Berger,  8  Barb.  528  ;  Hamblin  v.  Dinneford,  2  Edw.  Ch.  531 ;. 
[Rock  Island  Lumber,  etc.,  Co.  v.  Fail-mount  Town  Co.  (Kan.)  32  P.  1100.] 

6 


EXTENT  AND    LIMITATIONS.  7 

relief  is  the  recoveiy  ot"  inuiicy.(i)  Ou  the  same  priueiple  a  persuii 
who  has  agreed  to  sell  certain  claims  against  a  debtor,(2)  or  an 
annuity,(o)  or  a  patent  right, (4)  may  enforce  the  purchaser's  iiroinise 
to  jiay  the  price  in  equity,  because  the  purchaser  on  his  part  can,  l»y 
the  same  means,  compel  an  assignment  of  the  things  in  action  agreed 
to  be  sold.  It  should  be  observed,  however,  that  in  these  suits  by  th(^ 
vendor,  there  is  generally  some  other  act  to  be  done  by  the  purchaser 
besides  the  simple  payment  of  money,  the  performance  of  which  nmy 
be  enforced  by  the  decree,  and  even  in  those  cases  wlien  no  such  act 
has  been  undertaken  by  him  in  the  contract,  he  may  be  compelled  to 
accept  the  deed,  or  assignment  or  other  subject-matter  as  well  as  to 
pay  the  price,  so  that  the  decree  is  not  purely  one  for  the  recovery  of 
money.(u)  In  all  the  contracts  composing  the  third  class,  there  can  be 
no  doubt  or  difficulty ;  a  specific  performance  is  plainly  possible  in 
favor  of  either  party  against  the  other.  The  simplest  illustration  is  an 
agreement  to  exchange  certain  lands  made  by  the  two  proprietors. 

Grounds  of  the  jurisdiction. 

8ec  7.  Different  reasons  for  the  exercise  of  the  equitable  jurisdic- 
tion have  been  given,  in  former  times,  by  able  judges.  Thus,  Lord 
Hardwicke  is  reported  to  have  said  :(6)  "  In  general  this  court  will 

(1)  Old  Colony  R.  R.  v.  Evans,  6  Gray,  25 ;  Hopper  v.  Hopper,  1  C.  E.  Green, 
147  ;  Schroeppel  v.  Hopper,  40  Barb.  425  ;  Springs  v.  Sanders,  Phill.  Eq.  (N.  C.) 
G7;  CluTord  v.  Turrell,  1  Y.  &  C.  C.  C.  138,  150;  Walker  v.  Eastern  Counties  R'y 
Co.  6  Ha.  504;  [Raymond  v.  San  Gabriel  Val.  Land  &  Water  Co.  (C.  C.  A.)  53 
Fed.  Rep.  883;  Rock  Inland  Lumber,  etc.  Co.  v.  Fairmount  Town  Co.  (Kan.)  32 
P.  1100;  Sanford  v.  Wheelan,  12  Ores?.  301;  Johnston  v.  Wadswoi-th  (Oreg.),  34 
Pac.  Rep.  13.]  But  the  contrary  is  held  in  Massachusetts  under  the  statutory 
limitations  upon  the  equity  jurisdiction  in  that  state.  A  vendor  who  has  agreed 
to  sell  his  land  for  a  specified  sum  of  money,  cannot  maintain  a  suit  in  equity  for 
a  specific  performance,  because,  as  it  is  sai<l,  he  can  recover  the  i)rice  in  an  action 
at  law.  Jones  v.  Newhall,  115  Mass.  244;  [see  also,  Porter  v.  Frenchman's  Bay, 
etc.,  Co.  84  JJe.  195;  Kauffman's  Appeal,  55  Pa.  St.  383;  Smaltz's  Appeal,  09  Pa. 
St.  310.  In  New  Hampshire,  specific  performance  at  the  suit  of  a  vendor  of 
chattels  was  refu.sed,  Eckstein  v.  Downing,  04  N.  II.  248.  The  jurisdiction  in 
Maine,  New  Hampshire  and  Pennsylvania,  as  well  as  in  Massachusetts,  is  much 
restricted  by  statute.  J 

(2)  Adderley  v.  Dixon,  IS.  &  S.  607. 

(3)  Withy  V.  Cottle,  1  S.  &S.  174;  Kenney  v.  Wexham,  G  Mad.  355,  357. 

(4)  Cogent  v.  Gibson,  33  Beav.  557.  [See  also,  McKnight  v.  Robbins,  5  N.  J. 
Eq.  229,  2)ost,  §  IG  ;  Rothhoh/c  v.  Schwartz,  4G  N.  J.  E(i.  477,  as  instances  of 
specific  performance  at  the  suit  of  vendors  of  chattels.  Bumgiirdnei-  c.  Leavitt 
(W.  Va.)  13  S.  E.  67  (shares  of  stock).] 

(5)  [The  inadequacy  of  the;  legal  remedy  has  also  been  a.ssigued  as  a  suHicieut 
reason  for  specific  i^erformance  at  the  suit  of  the  vendor.  In  ])ursuing  the  eipiit- 
able  remedy,  the  vendor,  parting  with  the  ownership  of  the  land,  receives  therefor 
the  full  price  bargained  fur;  while  "in  the  a(!tion  at  law  fir  th<>  In-each  of  the 
contract,  tin;  plaintiff  could  only  recover  the  excess,  if  any,  of  the  siun  agreed  to 
be  paid  for  the  land  above  its  market  value  when  the  contract  was  to  be  \>oy- 
formed.  Such  a  remedv  is  m.-nif -stlv  inade(]uate."  Hodges  v.  Kowing,  58  Conn. 
12  ;  Andrew?'.  BaV)Cock  (Conn).  2:5  At'l.  Rep.  715  (:Mav  4.  1893) ;  Jones  v.  Newliall. 
115  Mass.  244.  248  ;  Old  Colony  R.  R.  r.  Evans,  (!  Gray,  25.  Mutuality  of  remrdy. 
as  a  ground  for  specific  performance  at  the  suit  of  the  venddr  was  rejected  in 
Eckstein  v.  Do\\Tiing,  64  N.  H.  248,  .v//j>m.] 

(G)  Buxton  V.  Lister,  3  Atk.  384. 

7 


8  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

not  entertain  a  bill  for  a  specific  performance  of  contracts  of  stocks, 
corn,  hops,  etc. ;  for  as  these  are  contracts  which  relate  to  merchan- 
dise, which  vary  according  to  different  times  and  circumstances,  if  a 
court  of  equity  should  admit  such  bills,  it  might  drive  on  the  parties  to 
the  execution  of  a  contract  to  the  ruin  of  one  side,  when  upon  an  action 
(at  law)  that  party  might  not  have  paid,  perhaps,  above  a  shilling  dam- 
ages. *  *  *  As  to  the  cases  of  contracts  for  the  purchase  of  lands 
or  things  that  relate  to  realties,  those  are  of  a  permanent  nature  ;  and 
if  a  person  agrees  to  j^urchase  them,  it  is  on  a  particular  liking  to  the 
land,  and  is  quite  a  different  thing  from  matters  in  the  way  of  trade." 
If,  as  Lord  IIardwickb  here  says,  the  fluctuating  value  of  certain 
commodities  is  the  reason  why  contracts  concerning  them  are  not  to  be 
specifically  enforced,  it  is  plain  that  the  same  objection  must  also  apply 
to  contracts  for  the  sale  of  land,  in  those  cases  where  its  market  value 
is  not  permanent,  or  at  least  confined  in  its  variation  between  any 
narrow  limits. (1)  The  grounds  of  the  jurisdiction  have  been  more 
accurately  and  comprehensively  stated  by  Sir  John  Leach, (2)  as 
follows :  "  Courts  of  Equity  decree  the  specific  performance  of  con- 
tracts, not  upon  any  distinction  between  realty  and  personalty,  but 
because  damages  at  law  may  not,  in  the  particular  case,  afford  a  com- 
plete remedy.  Thus  a  court  of  equity  decrees  performance  of  a 
contract  for  land,  not  because  of  the  real  nature  of  the  land,  but 
because  damages  at  law,  which  must  be  calculated  upon  the  general 
money  value  of  the  land,  may  not  be  a  complete  remedy  to  the 
purchaser,  to  whom  the  land  may  have  a  peculiar  and  special  value. 
So  a  court  of  equity  will  not  generally  decree  performance  of  a  con- 
tract for  the  sale  of  stock  or  goods,  not  because  of  their  personal 
nature,  but  because  damages  at  law,  calculated  upon  the  market 
price  of  the  stock  or  goods,  are  as  complete  a  remedy  to  the  purchaser 
as  the  delivery  of  the  stock  or  goods  contracted  for ;  inasmuch  as 
wit-h  the  damages  he  may  purchase  the  same  quantity  of  the  like 
stock  or  goods. "(3) 

Sec.  8.  The  foregoing  language  of  Sir  John  Leach  is  a  very  clear 
and  correct  statement  of  the  doctrine  in  its  most  general  terms,  but  is 
not  exhaustive ;  it  gives  no  rules  by  which  we  may  finally  determine 
for  all  cases,  where  the  legal  relief  of  damages  will  be  considered 

(1)  See  remarks  of  Richards,  C.  B.,  in  AVright  v.  Bell,  5  Price,  32S,  320.  In 
this  country,  where  the  price  of  land  is  extremely  fluctuating-,  the  reasons  of 
Lord  HvHDWiCKK,  would,  if  log-ically  carried  out,  (h^feat  the  specific  performance 
of  most  land  contracts. 

(2)  Adderly  v.  Dixon,  1  S.  &  S.  610. 

(3)  «ee  Ord  v.  Johnston,  1  Jur.  N.  S.  1063, 1064,  per  V.  C.  Stuart.  "The juris- 
diction of  specific  performance  is  one  which  is  always  said  to  be  discretionary  in 
the  court.  It  is  a  jurisdiction  assumed  by  this  court  for  the  more  i)0]'fect 
administration  of  justice,  for  g-iving- to  persons  having-  a  rig-lit  mider  an  ag-roe- 
ment,  the  very  specific  thing-  according-  to  the  provisions  of  the  agreement,  and  is 
intended  to  give  more  effectual  relief  in  the  case  to  which  it  applies — because 
according-  to  proceedings  of  courts  of  law  npon  the  breach  of  an  agreement,  what 
a  court  of  law  does  is  to  give  compensation  in  mcmey  whicli  shall  amount  to  an 
equivalent  to  that  which  the  agreement  had  sti^nihited  should  Ix?  x'<''"l"i''"^^l-" 


EXTENT  AND   LIMITATIONS.  9 

insufficient,  so  that  a  resort  may  be  had  to  the  equitable  remedy. 
From  a  comparison  of  the  authorities,  ancient  and  modern,  the  cases 
of  insufficiency  of  damages,  which  admit  a  recourse  to  equity  for  a 
specific  enforcement  of  the  contract,  are  reducible  to  two  distinct 
'-'lasses — or,  in  other  words,  the  insufficiency  of  damages  as  a  remedy 
may  be  referred  to  two  distinct  grounds  connected  with  the  contract. 
1,  The  first  is  w-here  the  subject-matter  of  the  contract  is  of  such  a 
s)\ecial  nature,  or  of  such  a  peculiar  value,  that  the  damages,  when 
as«ertained  according  to  legal  rules,  w^ould  not  be  a  just  and  reason- 
able substitute  for  or  representation  of  that  subject-matter  in  the 
hands  of  the  party  who  is  entitled  to  its  benefit — or,  in  brief,  where 
the  damages  are  inadequate.  2.  The  second  is  where  from  some 
special  and  practical  features  or  incidents  of  the  contract  inhering 
either  in  its  subject-matter,  in  its  terms,  or  in  the  relations  of  the 
parties,  it  is  impossible  to  arrive  at  a  legal  measure  of  damages  at 
all,  or  at  least  with  any  sufficient  degree  of  certainty,  so  that  no  real 
compensation  can  be  obtained  by  means  of  an  action  at  law — or,  in 
brief,  W'here  damages  are  impracticable.  All  the  i)articular  instances 
in  which  a  specific  performance  is  decreed  may  be  referred  to  one 
or  the  other  of  these  two  causes,  and  it  will  not  unfrequently  happen 
that  both  are  involved  in  the  facts  of  one  and  the  same  case,  I  shall 
now  proceed  to  illustrate  these  two  propositions,  and  in  this  manner 
exhibit  more  clearly  the  ancillary  and  supplementary  character  of  the 
reraedy. 

Inadequacy  of  the  damages.     Contracts  concerning  land. 

Sec.  9.  First.  The  law  in  estimating  the  damages  for  the  breach 
of  any  contract,  bases  them  upon  the  general  value  of  the  subject- 
matter,  its  value  to  persons  generally,  and  makes  no  account  of  any 
special  value  which  it  may  have  for  the  contracting  party,  or  of  any 
relations  which  may  exist  between  it  and  him.  If,  therefore,  he  enters 
into  the  agreement  from  some  motives  of  personal  gratification,  or  with 
the  design  of  making  some  particular  use  of  the  subject-matter,  or  for 
some  special  object  which  cannot  be  represented  by  money,  it  is  plain 
that  \vith  respect  to  these  features  and*  incidents  of  the  contract,  the 
law  does  not  assume  to  give  him  a  remedy.  His  interests  can  only  be 
♦satisfied  by  an  actual  fulfillment  of  the  stipulatiotis  which  have  been 
made  for  his  benefit;  for  example,  by  an  actual  conveyance  of  iIh^ 
land  or  chattel  which  he  has   purchased. (1)     If  money  wore  in  all 

(I)  Ilarnitt  i\  Yieldi)l<,^  2  Sch.  cS:  Lcf.  H-IO,  r)r)3.  H.")-!  ;  Ad.lcrlcv  r.  Dixon,  1  S.  & 
S.  (507;  Cud  V.  Rutter,  \V.  Wins.  570.  r)71;  llollis  r.  iMhvards,  1  V<n-n.  If)'.!;  Dnff 
V.  Fisher,  15  Cal.  375  ;  McGurvey  v.  Hall,  23  Cal.  140  ;    Kirksey  v.  Fik<-,  27  Ala. 

9 


10  SPECIFIC  PERFORMANCE    OF    CONTRACTS. 

cases  a  measure  of  the  injury  done  by  the  non-fulfillment  of  a  con- 
tract, it  is  evident  that  an  exact  equivalent  for  tli«  wrong  might 
always  be  rendered  by  means  of  damages.  But  money  is  an  exact 
equivalent  only  where  by  money  the  loss  sustained  through  the  breach 
can  be  fully  restored.  As  in  a  contract  for  the  purchase  of  merchan- 
dise, where  there  is  nothing  to  im^iress  a  peculiar  value  u})ou  the 
identical  articles,  the  jjurchaser  can,  with  the  damages  which  he  h;is 
recovered,  go  into  the  market  and  buy  other  goods  of  exactly  the  same 
quality,  kind  and  amount,  and  so  his  loss  is  fully  compensated.  In 
many  cases,  however,  the  ability  of  money  to  purchase  an  exact  equiva- 
lent does  not  exist.  One  landed  estate,  though  of  precisely  the  same 
market  value  as  another,  may  be  entirely  different  in  every  otlier 
circumstance  that  makes  it  an  object  of  desire.  The  vendee  in  a  laud 
contract  may  recover  back  the  purchase  money  which  he  has  paid,  and 
with  the  damages  which  he  thus  receives  he  may  purchase  another 

383  ;  Neville  v.  Merchants'  Ins.  Co.,  19  Ohio,  452  ;  Barnes?'.  Barnes,  G5  N.  C.  201  ; 
Willard  V.  Tayloe,  8  Wall.  557  ;  Richmond  v  Dubuque,  etc.  R.  R.,  33  Iowa,  422  ; 
Sonierby  v.  Buntin,  118  Mass.  279  ;  Bogan  r.  Daughdrill,  51  Ala.  312;  Blanchard 
1).  Detroit,  etc.  R  R.,  31  Mich.  44.  Among'  the  contracts  concerning"  land  which 
are  constantly  enforced  in  eiiuity  hy  a  decree  of  specific  pei'formance,  are  agree- 
ments to  give  or  to  i-enew  a  lease.  Furnival  v.  Crew,  3  Atk.  83,  87  ;  Tritton  v. 
Foote,  2  Bro.  Ch.  C3G ;  2  Cox,  174;  Burke  v.  Smyth,  3  Jon.  &  Lat.  193 ;  Moss  v. 
Barton,  L.  R.  1  E(i.  474 ;  Buckland  v.  Papillon,  L.  R.  2  Ch.  67;  [Payne  v.  Still,  38 
Pac.  Rep.  904  (Wash  ),  Dec.  28,  1804  ]  Biit  the  agreement  must  be  certain  and 
complete.  Robinson  v.  Kettletas,  4  Edw.  Ch.  67 ;  Whitlock  v.  Duffield,  1  Hofi'. 
Ch.  110.  For  cases  where  the  specific  enforcement  of  such  agreements  has  been 
refused  for  different  reasons,  see  Myers  v.  Forbes,  24  Md.  598 ;  Gelston  v.  Sig- 
mund,  27  Md.  334 ;  McKibbin  v.  Brown,  1  McCarter,  13 ;  Hopkins  v.  Gilman,  22 
Wise.  476.  In  relation  to  the  enforcement  of  contracts  for  mortgages,  see  De 
Pierres  v.  Thorn,  4  Bosw.  266 ;  City,  etc.,  Ins.  Co.  v.  Olmsted,  33  Conn.  476  ;  St. 
Paul  Division  v.  Brown,  11  Minn.  356  ;  McClintock  v.  Laing,  22  Mich.  212  ;  Ash  ton 
V.  Corrigan,  L.  R.  13  Ecp  76  ;  Hermann  -v.  Hodges,  L.  R.  16  Eq.  18.  [An  agree- 
ment to  execute  a  mortgage  is  not  a  mere  personal  contract,  but  affects  the  realty, 
and  will  be  specifically  enforced.  Dean  v.  Anderson,  34  N.  J.  Ecp  496,  and  note; 
Irvine  v.  Armstrong,  31  Minn.  216  ;Dye'U.  Forbes,  34  Minn.  13  ;  Nelson  v.  Bevins, 
14  Neb.  153  ;  Hicks  v.  Tnrck,  72  Mich.  Bll ;  Richardson  v.  Hamlet,  33  Ark.  237 
(liurchase  money  mortgage) ;  Arnold -y.  Cord,  16  Ind.  177  (same) ;  Ogden  v.  Ogden, 
4  Ohio  St.  182.  Even  a  mortgage  with  an  immediate  power  of  sale  ;  Hermann  v. 
Hodges,  L.  R.  16  E(p  18.  Such  an  agreement  constitutes  an  ecjui table  mortgage 
or  lien ;  Jones  Mort.  §  163;  3  Pom.  E<p  Jur.  §  1237.  The  property  to  be  mort- 
gaged must  be  specified;  3  Pom.  Eq.  Jur.  §  1236,  note.  As  to  agreements  to  dis- 
charge mortgages,  see  ijost,  §  15,  note.]  If  the  party  defendant  is  within  the 
jurisdiction,  so  as  to  l)e  reached  by  process,  a  court  of  equity  will  decree  the 
specific  performance  of  a  contract  concerning  land  situated  in  another  country  or 
state,  since  the  decree  is  in  personam  and  not  in  rem.  Earl  of  Athol  v.  Earl 
Derby,  1  Ch.  Cas.  221  ;  Toller  v.  Carteret,  2  Vern.  495  ;  Penn  v.  Lord  Baltimore, 
1  Ves.  Sen.  444 ;  Portlai-lington  v.  Soulby,  3  Myl.  &  K.  104  ;  Archei-  v.  Preston,  1 
Eq.  Cas.  Abr.  133  ;  1  Vern.  77  ;  Massie  v.  Watts,  6  Cranch,  148, 158  ;  Sut]ihen  v. 
Fowler,  9  Paige,  280 ;  Myres  v.  DeMier.  4  Daly,  343  ;  DeKyln  v.  Watkins,  3 
Sandf.  Ch.  185 ;  Shuttuck  v.  Cassidy,  3  Edw.  Ch.  152  ;  Mead  v.  Mei-ritt,  2  Paige, 
402 ;  Pingree  v.  Coffin,  12  Gray,  288 ;  Brown  v.  Desmond,  100  Mass.  269  ;  Davis 
r.  Parker,  14  Allen,  94 ;  Guerrant  v.  Fowler,  1  Hen.  &  Munf.  4 ;  [Potter  v.  Hollis- 
ter,  45  N.  J.  i:q.  508,  514  ;  Olney  v.  Eaton,  66  Mo.  563 ;  McQuerry  v.  Gilleland 
(Ky  ),  12  S.  W.  1037  ;  Cloud  v.  Greaslev,  125  111.  313  ;  Johnson  v.  Gibson,  116  111. 
294  ;  Hicks  v.  Turck,  72  Mich.  311 ;  Harris  v.  Patmore,  74  Ga.  273;  Gatrell  v. 
Stafford,  12  Neb.  545 ;  Kansas  Construction  Co.  v.  Topeka  R.  R.  135  Mass.  34. 
But  the  decree  must  be  founded  either  on  personal  sei'vice  of  jn-ocess,  or  the 
voluntary  apjiearance  of  the  defendant.  W<jrthington  v.  Lee,  61  Md.  530.]  For 
certain  limitations  upon  this  doctrine,  see  Morris  v.  Remington,  1  Parsons  Eq. 
387  ;  Blount  v.  Blount,  1  Hawks,  365  ;  Penn  v.  Hayward,  14  Ohio  St.  302  ;  Water- 
house  V.  Stansfield,  9  Hare,  234.     Specific  performance  may  be  decreed  and  title 

10 


EXTENT  AND    LIMITATIONS.  11 

estate  of  equal  market  value,  but  then  there  may  be  numerous  features 
and  incideuts  connected  with  the  former  tract  whicli  induced  liiui  to 
purchase,  whicli  niiuh'  it  to  him  peculiarly  desirable,  but  wliich  were 
not  taken  into  account  in  the  estimate  of  his  dama/^a!s,  and  which 
cannot  be  found  in  any  other  land  which  he  may  buy  willi  the  luoucy. 
It  is  evident  that  in  this  and  similar  cases  there  would  be  a  failur<^  of 
justice  unless  some  other  jurisdiction  supplemented  that  of  the  com- 
mon law,  by  compelling  the  defaulting  party  to  do  that  which  in  con- 
science he  is  bound  to  do,  namely,  actually  and  specifically  to  iiorform 
his  agreement.  (1) 

yEC.  10.  The  ancillary  and  supplementary  nature  of  the  remedy  is 
well  illustrated  by  the  rules  which  have  been  established  in  relation 
to  the  specific  enforcement  of  contracts  concerning  real  and  personal 
property,  especially  those  which  provide  for  the  sal(%  assignment, 
or  transfer  of  property.  It  is  well  settled,  as  ai)pears  by  citations 
already  made, (2)  that  the  different  modes  of  treating  the  two  kinds 
of  contracts  do  not  result  from  any  different  qualities  iidierent  in 
the  very  nature  of  land  and  chattels,  which  make  it  possible  to  enforce 
the  one  and  not  the  other,  but  from  matters  which  are  entirely  inci- 
dental and  collateral  to  the  subject-matter.  When,  therefore,  these 
incidental  circumstances  are  found  in  connection  with  a  contract  relat- 
ing to  chattels,. it  would  be  specifically  enforced  by  equity,  as  though 
it  related  to  land.  Where  land,  or  any  estate  therein,  is  the  subject- 
matter  of  the  agreement,  the  equitable  jurisdiction  is  firmly  estab- 
lished. Whenever  a  contract  concerning  real  property  is  in  its  nature 
and  incidents  entirely  unobjectionable  —  that  is,  when  it  possesses 
none  of  those  features  which,  as  w-e  shall  see,  appeal  to  th'3  discretion 
of  the  court — it  is  as  much  a  matter  of  course  for  a  court  of  equity  to 
decree  a  specific  performance  of  it,  as  it  is  for  a  court  of  law  to  give 
damages  for  the  breach  of  it.(:))     The  reasons  which  have  led  the 

vested  whei-o  the  land  is  within  the  state,  althoui,'-h  the  vendoi-  is  out  of  thci  jui-is- 
diction.  Rourke  v.  McLoug-hlin,  38  Cal.  196  ;  Mattesou  i\  Scofield,  27  Wise,'  G71  ; 
[Gratrell  v.  Stafford,  12  Nebr.  545]. 

(1)  The  foundation  of  the  jurisdiction  to  decree  the  sjieeitie  performance  of  con- 
tracts, is  simjily  this,  that  an  award  of  damaj^es  at  law  will  not  g-ive  a  party  the 
compensation  to  which  he  is  entitled  ;  that  is,  will  not  put  him  in  a  situation  as 
beneficial  to  him  as  if  the  as^'reement  were  specificallv  performed.  Hartnett  ;■. 
Yeilding-,  2  Sch.  &  Lef.  553  ;  Phillips  v.  Berg-er,  2  13arb.  GOS  ;  Hid.  527  ;  Pliyfe  7> 
Wai-dell,  2  Edw.  Ch.  47;  Stuyvesant  i\  Mayor,  etc.,  11  Pai<>:(%  414;  Nevitt  x\ 
Gillespie,  1  How.  Miss.  lOS  ;  Barnes  -?'.  Barnes,  (;5  N.  C  2G1 ;  Willard  v.  Tayloo,  8 
Wall.  557  ;  Richmond  ii.  Dubuijue,  etc.  R.  R  ,  33  Inwa,  422  ;  Somerby  i\  Buntin, 
118  -Mass.  270  ;  Bo^r-an  v  Uau<,rhdrill,  51  Ala.  312;  Blancliard  v.  Detroit,  etc.  R. 
R.,  31  Mich.  44;  Duff  v.  Fisher.  15  (.^al.  375;  McGarvey  v.  Hall,  23  Cal.  141; 
Schroep])el  v.  Hopper,  40  Bar!).  425  ;  [Brown  v.  Brown,  33  N.  J.  l^q.  050,  G54,  055]. 

(2)  See  Adderlev  v.  Dixon,  1  S.  &  S.  010,  per  Sir  Joii.v  LKArii.  V.  C. 

(3)  Hall  ('.  Warr«n,  9  Ves.  008 ;  Old  Colony  R.  R.  v.  Evans,  0  tiray,  30  ;  Story's 
Eq  .lur.  ^  751.  [See  also  Baunumn  v.  Pinckney,  1 18  N.  Y.  0O4  ;  Sherman  v.  Willets, 
17  Neb.  478;  Provisional  Municiimlitv  of  Pensacola  v.  Lehman,  57  Fed.  Rep. 
324;  6  C.  C.  A.  349;  Gatrell  v.  Stafford,  12  Nebr.  545.  But  se.;  Blake  v. 
Flatley,  44  N.  .J.  Eij.  228,  where  a  d(Mn-ee  of  specific  ]")erformanc(!  AViis  nn-ersed 
on  the  ffi'ound  that  the  value;  of  the  land  was  so  small  as  to  be  but  litth;  more  than 
the  costs  of  an  undefended  suit  in  a  c(mrt  of  Chancery,  and  tliat  thei-e  was  no 
reason  why  the  mu(;h  le.ss  expensive^  remedy  at  law  would  not  be  jus  beneficial  to 
the  complainant  as  the   eijuitable  remedy.]     What  agi-eement  creates  a  charge 

11 


12  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

courts  to  hold  that  damages  are  an  inadequate  compensation  for  the 
breach  of  contracts  concerning  land  have  already  been  stated. 
Undoubtedly  there  are  cases  where  the  reasons  have  no  actual  appli- 
cation and  force.  Land  is  often,  especially  in  this  country,  bought 
and  held  simply  as  merchandise,  for  mere  purposes  of  pecuniary  profit, 
possessing  no  interest  in  the  eyes  of  the  purchaser  and  owner  other 
than  its  market  value.  The  jurisdiction,  however,  extends  to  these 
cases.  The  rule  having  been  once  established,  is  now  universal. 
The  actual  motives  and  design  of  the  purchaser  are  never  enquired 
into,  for  it  is  assumed  in  every  instance  that  damages  are  an  inade- 
quate relief  for  the  breach  of  a  land  contract. 

Contracts  concerning  chattels. 

Sec.  11.  The  doctrine  is  equally  well  settled  that,  in  gen- 
eral, a  court  of  equitable  jurisdiction  will  not  decree  the  spe- 
cific performance  of  contracts  relating  to  chattels,  because  there 
is  not  any  specific  quality  in  the  iudividual  articles  which  gives 
them  a  special  value  to  the  contracting  party,  and  their  money 
value  recovered  as  damages  will  enable  him  to  i)urchase  others  in  the 
market  of  like  kind  and  quality.  To  this  may  be  added  the  fact  that 
the  law  itself  gives  a  remedy  by  which  the  possession  of  a  specific 

upon  one's  land  in  favor  of  another,  which  will  be  enforced  by  a  specific  perfor- 
mance, see  Johnson  v.  Johnson,  40  Md.  189.  A  county  may  enforce  a  dedication 
of  land  made  to  it,  by  a  suit  and  decree  of  specific  jjerformance.  Reese  v.  Lee 
Co.,  49  Miss.  G39.  The  following-  are  instances  of  various  ag-i-eements  concerning- 
land  which  have  been  specifically  enforced.  Bleakley's  Apjieal,  6(5  Pa.  St.  187  ; 
Seichrist's  Aj^peal,  ib.  237  ;  Wynn  v.  Smith,  40  Geo.  457  ;  Porter  v.  Allen,  54  Geo. 
623;  Yoakum  v.  Yoakum,  77  111.  85;  Pag-e  Co.  v.  American,  etc.  Co.,  41  Iowa, 
115  ;  Puddle  v.  Cameron,  50  Ala.  263  ;  Rawlins  v.  Shropshire,  45  Geo.  182  ;  Bi-own 
V.  Crane,  47  Geo.  483;  Chicag-o,  etc.,  R.  R.  v.  Nichols,  57  111.  464;  Snyder  v. 
Spaulding-,  ib.  480 ;  Law  v.  Henry,  39  Ind.  414 ;  Wai-ren  v.  Ewing,  34  Iowa,  168 ; 
McNamee  v.  Withers,  37  Md.  171 ;  Hayes  v.  Harmony  Grove  Cemetery,  108  Mass. 
400  ;  Chartier  v.  Marshall,  51  N.  H.  400  ;  Green  v.  Richards,  23  N.  J  Ecp  32,  536  ; 
McDavit  V  Pierrepoint,  ib.  42  ;  Frey  v.  Boylan,  ib.  90  ;  Pinner  v.  Sharp,  ib.  274 ; 
Colg-ate  V  Colg-ate,  ib.  372  ;  Millard  v.  Merwin,  ib.  419  ;  McClaskey  v.  Mayor,  etc., 
64  Barb.  310;  Grier  u  Rhyne,  69  N.  C.  847;  Rog-ers  v.  WiUiams,  8  Phila.  123; 
Wright  V.  Pucket,  22  Gratt.  370 ;  Ambrouse  v  Kelhn-,  22  Gratt.  769  ;  Estes  v. 
Furlong,  59  111.  298  ;  Hamilton  v.  Rook,  62  111.  139  ;  Au  Gres  Boom  Co.  v.  Whitney, 
26  Mich  42;  Warren  v.  Daniels,  72  111.  272;  Kuhn  v.  Freeman,  15  Kans.  423; 
Reynolds  v.  O'Neil,  26  N  J.  Eq.  223;  Williams  y.  McGuire,  60  Mo  254  ;  [Coffinan 
V  Robbins,  8  Oreg.  278  (an  agreement  for  the  division  of  water  in  a  running 
stream)]  An  agreement  to  give  a  lease  will  be  enforced  in  behalf  of  the  intended 
lessee.  See  Clark  v.  Clark,  49  Cal.  586  ;  [and  see  cases  cited  ante,  note  to  §  9]. 
And  in  Texas  an  agreement  to  convey  a  "  locative  interest "  will  be  enforced  in 
favor  of  the  heirs  of  the  "locator."  Bell  v.  Warren,  39  Tex.  106.  Foi-  instances 
of  the  sj^ecific  enforcement  of  family  settlements,  sec  Wistar's  Appeal,  80  Pa.  St. 
484 ;  Henrv  v.  Henrv,  27  Ohio  St.  121 ;  and  of  trusts,  see  (chapman  v.  Wilbur,  4 
Oreg  362  ;'Dodge  v  Wcllman,  1  Abb.  App.  Dec.  512  ;  Estate  of  W(>bb,  49  Cal.  542. 
A  bond  to  convey  land  will  be  specifically  enfoi-ced  against  the  obligor.  See 
Ewins  V  Goi-don,  49  N.  H.  444;  [Thornljurgh  v.  Fish  (Mont  ),  27  Pac.  Rep.  881  ; 
overruling  c^ic-Za  in  Kleinschmidt  v.  Kleinschmidt  (Mont.),  24  Pac  Rep.  266.  Pay- 
ment of  notes  for  the  purchase  money  made  Ijythe  vendee  who  has  received  only 
a  bond  for  title,  may  be  si^ecifically  enforco^l  T)y  the  hokbns  of  the  notes  ;  Walker 
v.  Kee,  16  S.  C.  76.  The  vendor  who  has  executed  the  title  bond,  may  sue  for  a 
specific  perfoi-mance.  Raymond  v.  San  Gabriel  Yal.  Land  &  Water  Co.  (C.  C. 
A.)  53  Fed.  Rep.  883]. 

12 


EXTENT  AND   LLMITATIONS.  13 

chattel  may,  under  ordinary  circumstances,  be  recovered  by  tlie  pro- 
prietor.(l)     It  should  be  borne  in  mind,  however,  that  no  distinction 

(1)  Cud  V.  Ruttev,  1  P.  Wms.  570;  2  Eii.  Cfia.  Abr.  18  pi.  8;  Nutl)rown  v. 
Thornton,  10  Ves.  IGl,  per  Lord  Eluon  ;  Adderley  v.  Dixon,  1  S.  &  S.  010,  per 
Sir  JoHX  Leach  ;  Buxton  ??.  Lifter,  3  Atk.  384,  i)er  Lord  Hauuwickk  ;  Cappur  v. 
Harris,  Bumb.  135,  per  Gilbkkt,  B.  ;  Caldwell  p.  Myers,  Hai-din,  551  ;  Madison 
V.  Chinn,  3  J.  J.  Marsh.  230 ;  Dalzell  v.  Crawford,  2  Pa.  L.  J.  17,  19 ;  Ins.  Co.  of 
N.  A.  V.  Union  Canal  Co.,  2  Pa.  L.  J.  65,  (57  ;  Savery  v.  Spence,  13  Ala.  561 ; 
Bubier  v.  Bubier,  24  Me.  42 ;  The  Justices  v.  Ci-oft,  18  Geo.  473 ;  Roundtree  v. 
McLain,  1  Hemp.  245;  Waters  v.  Howard,  1  Md.  Ch.  112  ;  Hoy  v.  Hansborough, 
1  Freem.  Ch.  533,  543  ;  Cowles  v.  Whitman,  10  Conn.  121,  124  ;  Bi-own  v.  Gilliland, 
3  Dessau.  539,  541  ;  Gram  v.  Stebbins,  0  Puig-e,  124  ;  Austin  v.  Gil!asi)ie,  1  Jones 
E(i.  261;  Ashe  v.  Johnson,  2  Jones  Eq.  149;  Ferguson  v.  Paschall,  11  Mo.  267; 
Phillips  t).  Berg-er,  2  Barb.  609;  8  id.  527;  Scott  v.  Billgerry,  49  Miss.  119; 
McLaughlin  v.  Piatti,  27  Cal.  451 ;  [Collins  v.  Karatopsky,  36  Ark.  316  ;  Paddock 
V.  Davenport,  107  N.  C.  710  ;  Southern  Express  Co.  (;.  Western  R.  R.  Co.  99  U.  8. 
191;  Cohn  v.  Mitchell,  115  111.  124];  but  see  Yulee  v.  Canova,  11  Flor.  9.  In 
Phillips  V.  Berger,  2  Barb.  609,  the  doctrine,  as  stated  in  the  text,  was  admitted 
but  was  shari:)ly  criticised  as  founded  upon  reasons  which  had  ceiised  to  be  of 
any  real  force,  per  Edmunds,  J.  The  jurisdiction  of  this  court  in  compelling  a 
specific  performance  of  contracts  relating  to  lands,  is  pretty  well  settleil ;  but  not 
so  in  regard  to  personal  contracts — that  is,  contracts  foi*  personal  acts,  or  for  the 
sale  and  delivery  of  personal  property.  The  reason  for  the  distinction  between 
the  two  classes  of  contracts  has  long  since  jiassed  away.  Yet  the  distinction  still 
in  a  great  measure  remains.  Judge  Stoky,  with  great  propriety,  in  his  Com- 
mentaries on  Equity  Jurisprudence,  remarks,  that  there  is  no  reasonable  objec- 
tion to  allowing  the  party  who  is  injured  by  the  breach  to  have  an  election  either 
to  take  damages  at  law,  or  to  have  a  specific  performance  in  equity.  The  coui-ts 
have  not  yet  gone  that  length  ;  but  when  they  do  they  will  relieve  the  subject  of 
specific  performance  of  many  of  its  embarrassments,  and  remove  from  this  bi-anch 
of  equity  jurisprudence  many  of  the  artificial  distinctions  to  which  the  courts 
have  been  compelled  to  have  recourse,  in  order  to  justify  their  advance  towards 
such  a  sound,  general  rule.  The  rule  in  regard  to  personal  contracts  yet  falls 
short  of  that,  and  is  extended  only  to  cases  where  the  party  wants  the  thing  in 
specie  and  he  cannot  otherwise  be  compensated ;  that  is,  where  an  award  of 
damages  would  not  put  him  in  a  situation  as  beneficial  as  if  the  agreement  was 
specifically  performed ;  or  when  the  compensation  in  damages  would  fall  short  of 
the  redress  which  his  situation  might  require.  The  general  rule  is,  not  to  enter- 
tain jurisdiction  to  decree  a  specific  performance  respecting  good.s,  chattels, 
stocks,  choses  in  action,  and  othei-  things  of  a  mere  jierscnal  nature  ;  but  the  rule 
is  qualified,  and  is  limited  to  cases  where  a  compensation  in  damages  would 
furnish  a  complete  and  satisfactory  remedy.  In  Cowles  v.  Whitman,  10  Conn. 
121,  124,  Daggett,  C.  J.,  said:  "It  is  contended  that  a  bill  will  not  lie  for  the 
specific  execution  of  a  contract  relating  to  personal  chattels  merely,  because  there 
is  an  adequate  remedy  at  law,  and  for  this  position  several  cases  are  cited  and 
many  more  might  be  cited.  As  a  general  rule  it  is  true.  As  contracts  for  the 
delivery  of  coi-n,  flour,  stock  in  banks,  or  in  the  funds,  and  the  like,  may  be  coni- 
lien^afed  in  damages,  courts  of  equity  will  leave  the  parties  to  their  r«Mnedy  at 
law.  There  can  be  no  difference  between  thcst;  few  shares  of  bank  stock  and  any 
other  like  number."  In  Hoy  i\  Hansborough,  1  Fr<'em.  Ch.  533.  543,  if  was  said  : 
"It  is  a  genei-al  rule  that  a  court  of  equity  will  not  deci-ee  a  spocitic  performance 
of  a  mere  personal  covenant  sounding  in  damages,  nor  of  a  contract  relating  to 
personalty,  where  compensation  may  be  had  at  law." 

13 


14  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

inheres  in  the  different  nature  of  land  and  chattels.  The  funda- 
mental principles  which  guide  the  court  are  the  same  whether  the 
contract  rehites  to  reality  or  to  personalty.  In  applying  these  prin- 
cii)les,  taking  into  account  the  discretionary  nature  of  the  jurisdiction, 
an  agreement  for  the  conveyance  of  land  is  prima  facie,  presumed  to 
come  within  their  operation,  so  as  to  be  subject  to  a  specific  perform- 
ance, but  a  contrary  presumption  exists  in  regard  to  agreements 
concerning  chattels. (1)  I  shall  now  describe,  in  brief  terms,  for  the 
purpose  of  further  illustrating  the  ancillary  nature  of  the  remedy,  the 
general  classes  of  cases  in  which  the  equitable  principle  is  applied  to 
chattels  in  the  same  manner  as  to  lands,  and  in  which,  therefore,  the 
contracts  relating  to  personal  property  will  be  specifically  enforced. 

Sec.  12.  It  is  well  settled  that  where  chattels  have  some  special 
peculiar  value  to  their  owner  over  and  above  any  market  value  which 
could  be  placed  upon  them  in  accordance  with  strict  legal  rules,  an 
interest  which  has  happily  been  termed  preiium  affectionis,  such  as  an 
heir-loom ;  and  where  the  chattels  are  not  individually  of  a  common 
class,  but  are  unique  of  their  kind,  and  cannot  be  readily  reproduced, 
so  that  others  of  a  similar  nature  and  equal  value  could  not  be  pro- 
cured by  means  of  damages  assessed  according  to  legal  rules,  such  as 
a  painting,  or  other  works  of  art ;  and  where  chattels  are  articles  of 
unusual  beauty,  rarity  and  distinction,  contracts  concerning  them 
will  be  specifically  enforced  in  equity,  and  a  delivery  of  them  will  be 
decreed,  although  they  might  be  recovered  in  the  common-law  actions 
of  detinue  or  replevin.  The  reasons  of  this  rule  are  the  utter  inade- 
quacy of  any  mere  pecuniary  compensation,  and  the  incompleteness 
of  the  relief  afforded  by  the  legal  actions  in  which  the  defendant 
might  easily  evade  an  actual  delivery  of  the  chattel  itself. (2)     It  will 

(1)  See  Dalzell  v.  Crawford,  1  Pars.  Eq.  37,  42  ;  Mechanics'  Bank  v.  Seton,  1 
Peters,  299  ;  Kirksey  v.  Fike,  27  Ala.  383  ;  Summers  v.  Bean,  13  Gratt.  404,  411. 

(2)  Pusey  v.  Pusey,  1  Vern.  273  ;  Duke  of  Somerset  v.  Cookson,  3  P.  Wms.  389  ; 
2  Eq.  Cas.  Abr.  164,  pi.  28 ;  Fells  v.  Read,  3  Ves.  7(i ;  Loyd  v.  Loaring-,  6  Ves. 
773 ;  Nutbrown  v.  Thornton,  10  Ves.  163,  per  Ld.  Eldon  ;  Savill  v.  Tancred,  1 
Ves.  Sen.  101 ;  3  Sw.  141,  n.  ;  Walwyn  v>.  Lee,  9  Ves.  33  ;  Wood  v.  Rowclifte,  3 
Hare,  304  ;  2  Ph.  382  ;  Ling-en  v.  Simpson,  1  S.  &  S.  600  ;  Lady  Arundel  v.  Phipps, 
10  Ves.  139 ;  Lowther  v.  Lord  Lowther,  13  Ves.  95  ;  Pearne  v.  Lisle,  Amb.  77 ; 
Falke  v.  Gray,  4  Di-ew.  651  ;  Earl  of  Macclesfield  v.  Davis,  3  V.  &  B.  16 ;  Clark 
V.  Flint,  22  Pick.  231  ;  Chamberlain  v.  Blue,  6  Blackf.  491  ;  McGowan  v.  Reming- 
ton, 12  Pa.  St.  (2  Jones)  56.  It  may  be  instructive  to  follow  the  action  of  the 
courts  through  this  line  of  cases  and  to  notice  the  facts  and  grounds  of  their  deci- 
sions. In  Pusey  v.  Pusey,  1  Vern.  273,  which  is  the  leading  case,  the  bill  was 
that  a  horn,  which  time  out  of  mind  had  gone  along  with  the  plaintiff's  estate,  and 
was  delivered  to  his  ancestors  in  ancient  time  to  hold  the  land  by,  might  be  deliv- 
ered to  him.     A  demurrer  to  the  bill  was  overruled  by  Lord  Keeper  Guilford.    It 

14 


EXTENT  AND   LI3IITATI0NS.  15 

be  seen  from  many  of  the  cases  cited  in  the  foot  note,  that  the 
equitable  jurisdiction  lias  not  been  confined  to  contracts ;  it  is  freely 
exercised  to  euforco  the  surrender  and  delivery  of  chattels  in  specie 

will  be  noticed  that  in  this  and  in  several  of  the  succeeding  cases  there  was  no  con- 
tract, but  the  possession  of  the  defendant  seems  to  have  been  toi-tious.  In  Duke 
of  Somerset  v.  Cookson,  3  P.  Wms.  389,  the  plaintiff  was  entitled  to  an  old  silver 
patera  bearing-  a  Greek  inscription  and  dedication  to  Hercules,  which  had  been 
dug  upon  his  estate.  It  had  come  into  defendant's  possession,  and  the  duke 
brought  a  bill  in  equity  to  compel  its  delivery  in  specie  undffaced.  The  defend- 
ant demurred  on  the  gj-ound  that  the  remedy  was  at  law,  but  the  demurrer  was 
oveiTuled  by  Ld.  Ch.  Talbot.  Fells  v.  Reed,  3  Ves.  70,  71,  was  brought  to 
recover  a  tobacco  box  of  a  remarkable  kind,  which  had  belonged  to  a  club.  la 
this  case  Ld.  Ch.  Loughborough  stated  the  reason  of  the  equitable  remedy  as 
follows:  "The  Pusey  horn,  the  patei-a  of  the  Duke  of  Somerset,  were  things  of 
that  sort  of  value  that  a  jury  might  not  give  two-pence  beyond  the  weight.  It 
was  not  to  be  cast  to  the  estimation  of  people  who  had  not  those  feelings.  In  all 
cases  where  the  object  of  the  suit  is  not  liable  to  a  compensation  by  damages,  it 
would  be  strange  if  the  law  of  this  country  did  not  afford  any  remedy.  It  would 
be  great  injustice  if  an  individual  cannot  have  his  property  without  being  liable 
to  the  estimate  of  people  who  have  not  his  feelings  upon  it."  Lord  Eldon  in  Nut- 
brown  V.  Thornton,  10  Ves.  163,  speaking  of  the  Pusey  horn  case  said  :  "It  turned 
upon  the  pretium  affectioiiis,  independent  of  the  circumstance  as  to  tenure,  which 
could  not  be  estimated  in  damages."  In  Pearne  v.  Lisle,  Amb.  77,  a  tinely 
carved  cherry  stone  was  recovered  ;  and  in  Lloyd  v.  Loaring,  6  Ves.  773,  certain 
masonic  dresses  and  regalia.  In  Savill  v.  Tancred,  1  Ves.  Sen.  101,  the  subject 
oi'dered  to  be  delivered  up  was  a  strong  box  containing  jewels  ;  in  Lady  Arun- 
dell  f.  Phipps,  10  Ves.  139,  ancient  family  pictures  ;  in  Lowther  v.  Lord  Lowther, 
13  Ves.  95,  title  deeds  and  valuable  paintings ;  and  in  Earl  of  Maccle-stield  v. 
Davis,  3  V.  &  B.  16,  an  iron  chest  containing  heir-looms.  Kindersley,  V.  C,  in 
Faicke  v.  Gray,  4  Drew.  651,  decided  that  a  contract  for  the  purchase  of  articles 
of  unusual  beauty,  rarity  and  distinction,  such  as  objects  of  vertu,  will  be  enforced, 
since  damages  could  not  be  an  adequate  compensation  for  non-performance.  The 
opinion  of  Bell,  J.,  in  McGowan  v.  Remington,  12  Pa.  St.  (2  Jones)  56,  is  so  able, 
clear,  and  full  a  discussion  of  the  doctrine  and  of  its  reasons,  that  I  shall  quote 
from  it  at  some  length.  The  suit  was  in  equity  to  compel  the  restitution  of  maps, 
plans  and  surveys  prejiared  and  used  by  the  complainant  in  his  business  as  a 
sui'veyor,  together  with  his  instruments,  and  office  furniture,  all  of  which  had 
been  left  in  the  possession  and  custody  of  the  defendant,  his  clei-k,  while  he  was 
absent  on  business,  under  an  arrangement  for  their  surrendei-  when  the  com- 
plainant should  return  and  resume  his  business.  The  defendant  refused  to 
deliver  them  under  an  unfounded  claim  that  they  had  been  sold  or  given  to  him. 
It  should  be  noticed  that  these  facts  present  a  point  which  will  be  described  in  a 
subsecjuent  section,  viz.  :  the  effect  of  a  trust  or  fiduciary  relation  impo-sed  upon 
the  defendant  concerning  the  chattels.  A  portion  of  the  opinion  is  devoted  to  the 
consideration  of  that  topic,  but  all  its  material  passages  will  be  quoted  now  to 
prevent  a  repetition.  After  disposing  of  the  defendant's  claim  that  they  had 
been  a  gift  or  sale,  the  judge  proceeds:  "The  contest  is  reduced  to  two  ques- 
tions :  First.  Whether  the  bill  presents  sufficient  grounds  to  wan-ant  the  inter- 
ference of  a  court  of  equity  ?  Secondly.  Whether  that  portion  of  the  decree  which 
covers  the  surveying  instruments  and  furniture  can  be  sustained  ?     As  to  the 

15 


16  SPECIFIC  FERFORMASCE    OF   COATRACTS. 

which  have  been  tortiously  obtained,  or  are  wrongfully  detained; 
but  the  precipe  ground  of  the  equitable  relief  in  such  cases  is  the  same 
as  that  upon  which  the  specific  performance  of  agreements  is  enforced^ 

first  point  the  defendant  insists  that  the  only  remedy  is  at  law.  Though  the 
action  of  replevin  is  with  us  a  broader  remedy  than  in  England,  lying  in  all  cases 
where  one  man  improperly  detains  the  goods  of  anothei-,  it  is  in  no  instance  effec- 
tive to  enforce  a  specific  return  of  chattels,  since  a  claim  of  property  and  bond 
given  is  always  sufficient  to  defeat  reclamation,  no  matter  what  may  be  the  final 
issue  of  the  contest.  As,  therefore,  our  common-law  tribunals  are  as  powerless 
for  such  a  pui-pose  as  the  similar  English  courts,  the  propriety  of  exerting  the 
equitable  jurisdiction  now  invoked,must  depend  with  us  upon  the  same  reasons  that 
are  deemed  sufficient  to  call  it  into  action  there.  Here  as  there,  the  enquiiy  must 
be,  whether  the  law  affords  adequate  redress  by  a  compensation  in  damages,  when 
the  complaint  is  of  the  detention  of  personal  chattels.  If  not,  the  aid  of  a  court 
of  chancery  will  always  be  extended  to  remedy  the  injury,  by  decreeing  a  return 
of  the  thing  itself.  The  precise  ground  of  this  jurisdiction  is  said  to  be  the  same 
as  that  upon  which  the  specific  performance  of  an  agreement  is  enfoi'ced,  namely, 
the  fruition  of  the  thing,  the  subject-matter  of  the  agreement,  is  the  object,  the 
failure  of  which  would  be  but  ill  supplied  by  an  award  of  damages.  Lowther  v. 
Lowther,  13  Ves.  95.  In  the  application  of  this  rule  some  difficulty  has  been 
experienced.  The  examples  aftbrded  by  the  English  books  are  usually  those 
cases  where,  from  the  nature  of  the  thing  sought  after,  its  antiquity,  or  because 
of  some  peculiarity  connected  with  it,  it  cannot  easily  or  at  all  be  i-eplaced."  He 
here  refers  to  several  of  the  cases  heretofore  cited  in  the  note,  and  proceeds  : 
"  Such  articles  as  these  are  commonly  esteemed  not  altogether,  or  perhaps  at  all, 
for  their  intrinsic  value,  but  as  being  objects  of  attachment  or  curiosity,  and  there- 
fore not  to  be  measured  in  damages  by  a  jury  who  cannot  enter  into  the  feelings 
of  the  owner ;  so,  too,  the  impossibility,  or  even  great  difficulty  of  supplying  their 
loss,  may  put  damages  out  of  the  question  as  a  medium  of  redress.  But  these 
are  not  the  exclusive  reasons  why  chancery  interferes,  for  there  may  be  cases 
where  the  thing  sought  to  be  recovered  is  susceptible  of  reproduction  or  substi- 
tution, and  yet  where  damages  could  not  be  so  estimated  as  to  cover  present  loss 
or  compensate  its  future  consequent  inconvenience.  And  I  take  it  this  is  always 
so  where,  fi'om  the  nature  of  the  subject-matter  or  the  immediate  object  of  the 
parties,  no  convenient  measure  of  damages  can  be  ascertained  ;  or,  where  noth- 
ing could  answer  the  justice  of  the  case  but  the  performance  of  a  contract  in 
specie."  The  judge  here  quotes  a  series  of  English  cases — which  will  be  noticed 
in  the  text  of  a  subsequent  section — and  describes  the  various  contracts  which 
were  enforced  therein,  and  adds  :  "  By  what  standard  would  you  measure  the 
injury  the  plaintiff  may  sustain  in  future  from  being  depiived,  even  for  a  brief 
period,  of  the  use  oi  pajiers  essential  to  the  prosecution  of  his  business?  Their 
intrinsic  value  might,  perhaps,  be  ascertained  by  an  estimate  of  the  labor  neces- 
sary to  their  reproduction,  admitting  the  means  to  be  at  hand,  and  within  the 
power  of  the  plaintiff.  But  how  could  a  tribunal  ascertain  the  probable  loss  which 
in  the  meantime  might  be  sustained  ?  The  present  pecuniary  inj  ury  might  be  httle 
or  nothing,  and  so  possibly  of  the  futui-e  ;  or  it  might  be  very  great,  depending 
upon  the  un  ascertain  able  events  of  coming  time,  as  these  iBay  be  influenced  l)y 
the  misconduct  of  the  defendant.  These  considerations  show,  I  think,  the  case 
is  not  one  for  damages.  Besides,  as  many  of  the  maps,  plans,  surveys,  and  cal- 
culations are  copies  of  private  papers,  we  are   by  no  means  satisfied  they  could 

16 


EXTENT  AND   LIMITATIONS.  17 

SO  that  the  decisions  based  upon  both  conditions  of  fact  are  authori- 
ties for  the  common  doctrine.(l)  Equity,  however,  will  not  interfere 
to  specifically  enforce  a  contract  concerning  even  such  a  special  and 
unique  chattel,  or  to  compel  its  delivery,  when  its  pecuniary  value 
has  already  been  fixed  by  the  parties  or  can  be  readily  ascertained, 
so  that  an  adequate  compensation  in  the  /brm  of  debtor  damages  can 
be  recovered  in  a  legal  action. (2) 

be  replaced  at  all,  certainly  not  without  permission  of  the  owner— a  risk  to  which 
the  plaintitf  ought  not  unnecessarily  to  be  exposed.  If  to  these  reflections  we 
add  the  fact  that  some  of  the  documents  are  the  original  work  of  the  plaintiff,  of 
value  as  being  predicated  upon  data  possibly  no  longer  accessible,  a  wrong  is 
perpetrated  which  a  chancellor  ought  not  to  hesitate  in  relieving.  It  is  enough 
for  this  purpose  that  a  perfect  relief  at  law  is  not  apparent,  rhe  thing  to  be 
guarded  against  is  not  the  invasion  of  the  defendant's  rights,  for  he  stands  here 
absolutely  without  any,  except  the  common  interest  every  citizen  has  in  preserv- 
ing the  proper  line  of  distinction  that  divides  the  jurisdiction  and  limits  of  the 
several  courts.  What  is  to  be  avoideti  is  an  unnecessary  trespass  upon  the 
province  of  the  common-law  tribunals,  and  this  is  to  be  tested  by  the  simple  query 
whether  they  offer  a  full  remedy  for  the  wrong  complained  of.  But  there  is 
another  ground  upon  wh.ch  this  jtroceeding  may  be  sustained.  In  Falls  v.  Reid 
the  snuff  box  was  deposited  with  the  defendant,  as  a  member  of  the  society,  upon 
certain  terms,  to  be  redelivered  upon  the  happening  of  certain  events.  Lord 
R0S.SLYN  held  that,  under  these  facts,  the  defendant  was  a  depo.^itary,  on  an 
express  trust  which,  upon  a  common  gi-ound  of  equity,  gave  the  plaintiff  title  to 
sue  in  that  court  ;  and  in  this  he  was  supported  by  Lord  Eluon  in  the  suljsequent 
case  of  Nutbrown  v.  Thornton.  According  to  the  proof  in  our  case,  the  papei-s 
and  documents  claimed  wei-e  left  with  defendant  under  the  express  understand- 
ing that  they  were  to  be  redelivered  whenever  the  plaintiff  should  see  fit  to 
resume  the  business  of  his  then  profession  in  this  city.  It  is  then  the  case  of 
direct  confidence  violated — a  spell  sufficiently  potent  to  call  into  vigorous  activity 
the  authority  involved."  The  court  then  held  that  it  should  decide  the  whole  con- 
troversy in  one  suit,  and  include  the  furniture  and  instruments  in  the  same  decree 
with  the  maps,  plans  and  surveys. 

See,  also,  the  following  cases,  based  upon  contracts  concerning  the  sale  or 
delivery  of  slaves,  in  which  the  doctrine  as  to  the  specific  performance  of  agree- 
ments relating  to  personalty,  was  fully  discussed :  Farley  v.  Fai-ley,  1  McCoi-d. 
Ch.  506,  516  ;  Sarter  v.  Gordon,  2  Hill  Ch.  121 ;  Horry  v.  Glover,  2  Hill  Ch.  515, 
525  ;  Young  v.  Burton,  1  McMullan  Eq.  256 ;  Bobo  v.  Grimke,  1  McMuUan  Eq. 
304,  310;  Eraser  v.  McClenaghan,  2  Richardson  Eq.  79,  84  ;  Ellis  «'.  Commander,  1 
Strobh.  Eq.  188,  190 ;  Bryan  v.  Robei-t,  1  Strobh.  335,  341 ;  Savery  v.  Spence,  13 
Ala.  561,  564  ;  Murphy  v.  Clark,  1  Sm.  &  Marsh.  221,  232 ;  Butler  n.  Hicks,  11 
Sm.  &  Mar.  79,  85  ;  Dudley  v.  Mallery,  4  Geo.  52,  65 ;  Williams  v.  Howard,  3 
Murphy,  74 ;  Pasley  r>.  Martin,  5  Richardson  Eq.  351 ;  Reese  v.  Holmes,  5  Rich. 
Eq.  531  ;  Leftin  v.  Ei-spy,  4  Yerg.  84,  92  ;  Henderson  v.  Vauex,  10  Yerg.  30,  37 ; 
Summers  v.  Bean,  13  Graft.  404  ;  Caldwell  v.  Myers,  Hardin,  551. 

(1)  See  Lowther  v.  Ld.  Lowther,  13  Ves.  95. 

(2)  Cowling  V.  Bitjemann,  2  J.  &  H.  544;  8  Jur.  (N.  S.)  53S.  In  this  ca.se, 
which  was  a  suit  by  an  artist  seeking  to  obtain  possession  of  a  pictui-e,  it  was  con- 
ceded that  a  court  of  equity  has  undoubted  jurisdiction  to  order  the  delivery  up 

2  17 


18  SPEC  If  IV    PERtORMANCE    OF   CONTRACTS. 

Skc.  lo.  Applying  the  same  priiuuple,  courts  of  equity  will,  at  the 
suit  of  the  persons  legally  entitled  to  them,  decree  the  delivery  up  of 
deeds  and  other  instruments  in  writing,  since  damages  are  inadequate 
and  the  legal  actions  for  the  recovery  of  possession  are  imperfect  in 
their  operations. (1)  Tliis  equity  suit  to  compel  the  specific  delivery 
of  chattels,  deeds  and  the  like,  possesses  another  great  and  incidental 
advantage  over  the  legal  remedy,  since  the  plaintiff  is  not  compelled, 
as  in  trover,  to  prove  a  conversion  of  the  article,  or  a  refusal  to  sur- 
render possession  of  it  when  demanded.  In  equity  the  court  looks  at 
the  case  made  by  the  defendant.  It  is  not  necessary  to  apply  to  a 
defendant  before  a  suit  is  instituted;  if  the  defendant  says,  "if  you 
had  applied  to  me  I  should  not  have  contested  your  claim,"  and  makes 
no  resistance,  then  undoubtedly,  he  gets  the  costs  of  it;  but  if  it 
appears  that  an  application  would  have  been  useless,  and  that  the 
defendant  resists  at  the  hearing,  the  court  looks  at  the  case  exactly 
in  the  same  point  of  view  as  if  that  right  had  been  insisted  npon 
before  the  bill  had  been  filed.(2) 

of  a  painting"  when  it  lias  a  special  value,  and  the  legal  remedy  is  therefoi-e  inad- 
equate, but  since  his  agreement  and  the  averments  of  his  pleadings  showed  that 
the  plaintiff  had  himself  put  a  fixed  price  vipon  the  i)icture,  it  was  held  that  dam- 
ages would,  vmder  the  circumstances,  be  an  adequate  remedy,  and  that  there  was 
no  necessity  for  any  mterference  by  an  equitable  tribunal.  The  proposition  of 
the  text  practically  amounts  to  this,  that  a  party  may  by  his  own  acts  put  a  cei"- 
tain  value  upon  a  unique  chattel,  which  can  be  recovered  at  law,  and  which,  being 
his  own  estimate,  will  be  taken  as  a  sufficient  compensation. 

(1)  Brown  V.  Brown,  1  Dick.  C2  ;  Armitage  v.  Wadsworth,  1  Mass.  192  ;  Reeves 
V.  Reeves,  9  Mod.  128  ;  Tanner  v.  Wise,  3  P.  Wms.  296  ;  Harrison  n.  Southcote,  1 
Atk.  528 ;  Jackson  v  Butler,  2  Atk.  300  ;  Ford  v.  Peering,  1  Ves.  72  ;  Papillon  v. 
Voice,  2  P.  Wms.  478  ;  Buncombe  v.  Mayer,  8  Ves.  328  f  Knye  v.  Moore,  1  S.  & 
S.  61 ;  Freeman  v.  Fairlie,  3  Mer  30 ;  Gray  v.  Cockeril,  2  Atk.  114  ;  Duchess  of 
Newcastle  v.  Pelham,  3  Bro.  P.  C.  400  (Tom.  ed.) ;  Reeves  v.  Ti-ye,  1  D.  G.  &  Sm. 
273:  Lady  Beresford  v.  Driver,  14  Beav.  387;  16  Beav.  134;  Tudor's  Lead.  Cas. 
on  Real  Pi-op.  p  7.5  (2d  ed  )  and  cases  cited  ;  [Williams  v.  Carpenter,  14  Colo.  477; 
Baum's  Appeal,  113  Pa,  St.  58,  67  (delivery  comi^elled  of  deed  held  in  escrow) ; 
Pattison  v.  Skillman,  34  N.  J.  Eq.  345  (delivery  compelled  of  iiapers  left  with  the 
defendant,  which  were  of  value  to  the  complainant  to  enable  him  to  establish  his 
right  as  heir  of  an  estate)].  The  delivery  of  a  certiiicate  of  registry  of  a  ship 
may  be  decreed  against  a  jjerson  unlawfully  detaining  it.  Gibson  v.  Ingo,  6  Ha. 
112.  Mortgage  deeds  having  been  wrongfully  procured  by  an  agent  of  the  owner. 
Loi-d  Hardwickk  decreed  tliat  they  should  be  surrendered  up  by  the  pledgee,  and 
said  :  "That  the  j^laintitf  might  have  had  an  action  of  trover,  bat  then  he  could 
only  have  damages  for  the  detaining  but  not  the  deeds  themselves,  and  therefore 
he  was  right  in  bringing  a  suit  in  equity  for  the  recovery  of  his  deeds  ";  and  see 
Cowles  V.  Whitman,  10  Conn.  121 ;  Hill  v.  Rockingham  Bank,  44  N.  H.  567  ;  [and 
cases  cited,  post,  p.  25,  n.  (4).  Where  the  maker  of  a  promissory  note  obtains 
possession  of  it  fi-om  holder,  under  i:)romise  to  return  the  note  or  execute  a  new 
one,  but  destroys  the  note,  he  may  be  compelled  to  specifically  perform  his  agree- 
ment. McMullen  v.  Vanzant,  73  111.  190.  An  agreement  to  cancel  and  deliver  up 
certain  notes  made  by  the  plaintiff  and  running  to  the  defendant  may  be  enfoi  ced, 
on  the  quia  timet  pi-inciple,  notwithstanding  the  notes  are  overdue  and  are  in  the 
hands  of  the  original  payee.  Tuttle  v.  Moore,  10  Minn  123,  125.  "If  an  action 
were  brought  upon  the  notes,  the  plaintiff  might  ha  able  to  make  a  successful 
defence  ;  but  he  may  be  prevented  from  doing  this  in  consequence  of  the  lapse  of 
time,  the  death,  removal  or  forgetfulness  of  witnesses,  the  loss  of  documentary 
evidence,  and  by  other  contingencies  not  in  his  control  "1- 

(2)  Turner  v.  Letts.  20  Beav.  191,  per  Lord  Romilly,  M.  R. 

18 


EXTENT  AM)   LI3IITATI0NS.  19 

Sec.  14.  The  jurisdiction  which  I  am  describing  is  greatly  enlar^^ed 
where  a  trust  or  fiduciary  relation  exists  in  dilation  to  chattels.  If 
an  express  trust  has  1)(h)u  created  hy  the  terms  of  the  contract.,  or  il"  a 
constructive  trust  has  arisen  from  the  acts  or  omissions  of  the  parties, 
equity  will  decree  a  specific  performance  of  the  contract  and  compel 
a  specific  delivery  of  the  chattels,  whatever  be  their  nature,  special 
or  common  ;  and  the  same  equitable  relief  will  be  granted  to  enforce 
a  fiduciary  duty  or  confidence  reposed,  which  is  not  in  the  strict  sense 
of  the  term  a  trust,  as  in  the  case  of  an  agency.  The  court  will,  if 
necessary,  interfere  by  injunction  to  restrain  any  impro[ier  disposition 
of  or  dealing  with  the  chattels  by  the  person  upon  whom  the  trust 
or  fiduciary  obligation  rests.(l) 

(1)  Wood  V.  Rowclifte,  3  Ha,  304 ;  2  Phil.  382  ;  Lingen  v.  Simpson.  1  S.  &  S.  600  ; 
Pooley  V.  Budd,  14  Beav.  34  ;  Clark  v.  Flint,  22  Pick.  231 ;  Cowles  v.  "Whitman,  10 
Conn.  121  ;  Stanton  v.  Percival,  5  H.  L.  Cas.  257,  208;  Ferguson  v.  Pjischall,  11 
Mo.  2:37;  McGowin  v.  Remington,  12  Pa.  St.  (2  Jones)  5(3;  Abbott's  Ex'r  v. 
Reeves,  13  Wright.  404  ;  Mechanics'  Bank  v.  S(»ton,  1  Peters,  309  ;  Hill  v.  Rock- 
ingham Bank,  44  N.  II.  567 ;  Peer  v.  Kean,  14  IMlch.  354  ;  [.Johnson  v.  Brooks,  93 
N.  Y.  337;  Henderson  v.  Johns,  13  Colo.  280;  Chalee  v.  Sprague  (R.  I.),  13  Atl. 
Rep.  121  ;  Krohn  v.  Williamson,  62  Fed.  Rep.  869  (stock) ;  Goodwin  Co.'s 
Appeal,  117  Pa.  St.  514,  534  (stock)].  In  Pooley  v.  Budd,  14  Beav.  34,43, 
44,  Lord  Rom:li,y,  M.  R.,  said:  "For  instance,  if  a  man  about  to  contract 
marriage,  and  possessed  of  a  large  and  valuable  <piantity  of  iron,  lead,  or 
copper  ore,  assigned  that  ore  to  the  trustees  of  the  settlement  in  trust  to  suU 
and  invest  the  proceed^;,  and  hold  the  pi-oceeds  when  invested  upon  the  trust.s  of 
the  settlement,  there  can  be  no  question  but  that  this  court  would,  before  the 
sale,  compel  the  po.ssessor  of  the  ore  and  the  trustees  of  the  settlement  to  fnltiU 
every  part  of  the  trust  which  one  had  undertaken  to  constitute  and  the  other  had 
undertaken  to  execute."  In  Stanton  v.  Percival,  5  H.  L.  Cas.  257,  268,  where  a 
per.son  hail  by  contract  made  himself  trustee  of  stock  for  another  pors<in,  with 
whose  money  it  had  been  purchased,  a  transfer  of  the  stock  to  the  beneticial 
owmer  w'as  compelled.  For  a  similar  case,  see  Cowles  v.  Whitman,  10  Conn.  121. 
In  Clark  v.  Flint,  22  Pick.  231,  239,  the  ownei-  of  a  brig  had  contracted  m  writing 
for  a  valuable  consideration,  to  hold  her  in  trust  for  the  plaintiff  and  subject  to 
his  order  and  disposition,  and  had  then  sold  her  to  a  thii-d  jierson  who  had  notice 
of  the  former  contract.  The  original  contractor  being  insolvent,  it  was  held  that 
a  speciiic  performance  should  be  decreed.  On  this  point  Wilde,  J.  said  :  "  It  ia 
objected  that  the  court  ought  not  to  exercise  jurisdiction  in  equity  for  a  specific 
performance  of  agreements  relating  to  personal  property.  And,  generally,  that 
rule  has  been  observed  in  the  English  courts,  but  has  been  subject  to  numerous 
exceptions,  and  has  been  unifoi-mly  limited  to  cases  where  a  compensation  in 
damages  furnishes  a  clear  and  adequate  i-emedy.  If  the  party  complaining  has 
no  such  remedy,  it  is  quxia  immaterial  whether  the  contract  relates  to  real  or 
personal  estate.  The  exercise  of  equity  jurisdiction  does  not  jiroceed  upon  any 
distinction  between  real  estate  and  personal  estate,  but  because  damages  at  law 
may  not  in  the  particular  case  afford  a  comi')lete  remotly.  The  reasons  given  for 
a  distinction  between  real  estate  and  pers(mal  estate  ai-e  not  very  sntisfactory. 
All,  a:;  it  seems  to  me,  that  can  fairly  be  inferred  from  the  cases  on  this  )ioint  is. 
that  in  contracts  respecting  pei'sonal  estate  a  compensation  in  damages  i  -!  much 
oftener  a  complete  and  satisfactory  i-cmedy,  than  it  is  in  those  which  relate  to 
real  estate.  But  in  all  cases  if  a  party  has  not  such  a  remedy,  a  court  of  equity 
will  entertain  jurisdiction,  and  grant  i-elief  as  justice  may  recpiire."  In  the 
decision  of  the  case  some  reliance  was  placed  upon  the  contractor's  insolvency  as 
rendering  damages  inadequate.  This  fact,  however,  at  the  present  day,  and  with 
courts  accustomed  to  the  exei'cise  of  full  equity  powers,  would  be  regarded  !is 
wholly  immaterial  under  similar  circumstances  of  trust  and  confidence.  For  the 
opinion  in  McGowin  v.  Remington,  12  Pa.  St.  (2  Jones)  56,  see  ante,  §  12,  note  (1). 

19 


20  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

Sec.  15.  There  are  numerous  other  instances,  which  cannot  easily 
be  referred  to  any  general  class,  in  which  contracts  have  been  specift~ 
cally  enforced  on  the  ground  that  damages  would  be  inadequate. 
The  following  are  examples.  A  contract  for  the  sale  and  delivery  of 
chattels  which  are  essential  in  specie  to  the  plaintiff,  and  which  the 
defendant  can  supply,  while  no  one  else  can,  could  be  specifically 
enforced.  This  case  falls  directly  within  the  reasons  of  the  doctrine, 
for  the  plaintiff  could  not,  with  any  amount  of  damages  in  his  hand, 
go  into  the  market  and  purchase  other  articles  of  the  same  kind  and 
value. (1)  It  would  not,  however,  be  extended  beyond  those  reasons, 
and  applied  when  a  sufficient  supply  of  materials  could  be  reasonably 
obtained  elsewhere.  Again,  contracts  for  the  delivery  of  goods  will 
be  specifically  enforced,  when  by  their  terms  the  deliveries  are  to  be 
made  and  the  purchase  price  paid  in  installments  running  through 
a  considerable  number  of  years.  iSuch  contracts  "  differ  from  those 
that  are  immediately  to  be  executed."  Their  profits  depending  upon 
future  events,  cannot  be  estimated  in  present  damages,  which  must, 
of  necessity,  be  almost  wholly  conjectural.  To  compel  a  party  to 
accept  damages  under  such  circumstances  is  to  compel  him  to  sell  his 
possible  profits  at  a  price  depending  upon  a  mere  guess. (2) 

(1)  Buxton  v.  Lister,  B  Atk.  883,  pei-  Lord  Hardwicke,  who  puts  the  case  of  an 
owner  of  timber  contracting'  to  sell  it  to  a  shiji  builder,  who  was  under  a  contract 
to  complete  a  ship  within  a  given  lime,  for  which  the  timber  purchased  was, 
necessary,  and  from  no  other  person  could  a  supply  lie  pi'ocui'ed.  See  "Ward  v. 
Duke  of  Buckingham,  cited  in  3  Atk.  385;  10  Yes.  161  ;  [Gloucester,  etc.,  Co.  v. 
Russia  Cement  Co.,  1.54  Mass.  92,  07  ;  Equitable  Gas-Light  Co.  v.  Baltimore 
Coal-Tar,  etc.  Co.,  63  Md.  285  (contract  for  coal-tar,  that  was  indisijensible  to  the 
business  of  the  plaintiff,  and  not  otherwise  to  be  obtained  in  the  city  where  the 
parties  resided  than  from  the  defendant,  and  by  withholding  the  tar,  the  plaintifi' 
would  be  subject  to  great  addditional  expense  and  laljor  in  procuring  the 
material  fi-om  distant  cities).  Adams  v.  Messinger,  147  Mass.  185  (contract  by 
the  owner  of  a  patent  right  to  furnish  articles  covered  hy  his  patent,  and  which, 
therefore,  he  alone  can  supply,  si^ecitically  enforced).  Rector,  etc.,  of  St.  David's 
Church  v.  Wood  (Oreg.),  34  P.  18;  Pattison  v.  Skillman,  34  N.  J.  Kq.  345]. 
Agreement  to  pay  off  or  discharge  a  mortgage.  Barkley  ■?'.  Barkley,  14  Rich. 
Eq.  12;  Bennett  v.  Abrams,  41  Barb.  619;  Weir  v.  Mundell,  3  Brews.  594; 
[Malins  v.  Bro^vn,  4  N.  Y.  403  (such  agreement  is  within  the  statute  of  frauds) ; 
Stark  V.  Wilder,  36  Vt.  752,  559  ;  Saeger's  Appeal,  96  Pa.  St.  479  ;  Neal  v. 
Speigler,  33  Ark.  63 ;  Lankton  v.  Stewart,  27  Minn.  346  ;  Ackia  v.  Ackla.  6  Pa. 
St.  228].  See,  also.  Hovel  v.  Miller,  2  Dur.  103 ;  Howe  v.  Nickerson,  14  Allen, 
400  ;  Watkins  v.  Maule,  2  J.  &  W.  242  ;  Lvde  v.  Mynn,  4  Sim.  505  ;  1  Mvl.  &  K. 
683  ;  Wellesley  v.  Wellesley,  4  My.  &  Ci-.  554,  559  ;  [Brewer's  Appeal,  104  Pa.  St. 
417  (contract  to  satisfy  a  mortgage);  Nimma  f!.  Vaughan,  4>0  Mich.  356  (partial 
release)  ;  Potter  v.  Brown,  50  Mich.  436  (agreement  to  permit  plaintiif  to  redeem 
after  forclosure).  Agreement  to  give  a  vmrtga(je  on  2>erso)ial  projjerty,  enforced. 
Alexander  v  Ghiselin,  5  Gill.  138 ;  Trieberts  v.  Burgess,  11  Md.  452;  Brooks  v. 
Rutf,  37  Ala.  371 ;  Tiernan  v.  Granger,  65  111.  351  (oral  agreement  enforced 
because  of  part  performance) ;  but  see  Johnson  v.  Hoover,  72  Ind.  395]. 

(2)  Taylor  v.  Neville,  cited  in  Buxton  v.  Lister,  3  Atk.  384 ;  Ball  v.  Coggs,  1 
Bro.   P.   C.   140  (Toml,   ed.).     In  Taylor  v.   Neville,  Lord  Hardwicke  decreed 

20 


EXTENT  AND    LIMITATIONS.  21 

Sec.  16.  The  followinu"  are  additional  instances  of  special  agree- 
ments which  have  been  specilically  enforced  hecanso  the  remedy  of 
ilaniages  wonld  afford  no  just  and  adequate  compensation:  A  con- 
tract to  insure ;  (1)  ante-nuptial  agreements  containing  stipulations 
concerning  personal  i)roi)erty  ;(2)  a  general  covenant  to  indemnify  ;(H) 

specific  pei'forniuncc  of  ;i  conti-act  lor  Ww.  sale  of  800  tons  of  iron  to  he  (leli%-oi'ecl 
and  puitl  for  l)y  insialhiipnts,  in  a  certain  number  of  yeai's.  In  IJall  v.  Cog'g's, 
the  et)ntvact  was  to  jiay  tlie  plaintifl'  a  certain  annual  sum  for  his  life  and  also  a 
certain  other  sum  for  every  liundi-ed  weight  of  hrass  wire  manufactured  by 
ilefendant  during-  the  life  of  the  plaintiff".  A  specilic  perfoi-mance  was  decj-eed 
by  the  H.  of  L.  on  the  ground  that  damages  would  be  conjectui-al  and  inadecpiate, 
and  to  compel  plaintiff  to  take  damages  would  be  to  compel  him  to  sell  the  aimual 
provision  during  his  life  secured  by  the  contract,  at  a  mere  conjectural  pii^e. 
See  the  remarks  of  Sir  W.  Page  Wood,  V.  C,  in  Pollard  v.  Clayton,  1  K.  &  J. 
462,  474,  criticising  Taylor  v.  Neville.  It  seems  plain,  however,  that  the  decision 
by  Lord  Hardwickk  falls  directly  witlain  the  decision  and  the  reasons  therefor  in 
Ball  V.  Coggs.  The  V.  C.'s  objections  are  too  narrow.  A  contract  to  purchase 
the  arch  stone,  span-drill  stone,  and  Brameley  Fall  stone  contained  in  the  old 
Westnunster  Bridge,  was  specifically  enforced  by  Lord  Romilly,  ^I.  11.,  in  Thorn 
T.  Commrs.  of  Public  Works,  H2  Beav.  490.  Sec  Schotsmans  t).  Lancashire,  etc., 
R.  R.  Co.,  L.  R.  2  Ch.  332. 

(1)  Carpenter  v.  The  M.  Ins.  Co.,  4  Sandf.  Ch.  408  ;  Neville  v.  Merchants',  etc., 
Ins.  Co.,  19  Ohio,  452  ;  Tayloi-  v.  Merchants',  etc.,  Ins.  Co.,  9  How.  U.  P.  390. 
[See,  also,  Gold  v.  Sun  Ins.  Co.,  73  Cal.  21(3;  Standley  v.  Northwestern  Ins.  Co., 
9.")  Ind.  2i34;  Ilayner  v.  American  Ins.  Co.,  69  N.  Y.  435;  Ellis  v.  Ins.  Co.,  50 
N.  Y.  402;  Trustees  v.  Ins.  Co.,  10  N.  Y.  305;  Commercial  Ins.  Co.  v.  Union 
Ins.  Co.,  19  How.  318  ;  Bade  v.  St.  Joseph  Ins.  Co.,  73  Mo.  371 ;  Haden  v.  Farm- 
ers' Fire  Ass'n,  78  Va.  70 ;  Chi'isty  v.  Homoeopathic  Ins.  Co.,  93  N.  Y.  34'  ( -on- 
tract  to  issue  paid-up  jiolicy,  after  payment  of  certain  premiums).  Woody  v. 
Old  Dominion  Ins.  Co.,  31  Graft.  3(52  ;  Phoenix  Ins.  Co.  v.  Ryland,  69  Md,  437. 
If  a  loss  has  already  occurred,  the  court,  having  ol)tained  jurisdiction,  may 
administer  fidl  relief  l)y  <lirecting  tlie  jiayment  of  the  loss.     See  cases  cited.] 

(2)  Tarbill  v.  Tarbill.  9  AUen.  278  ;  an  agreement  that  the  wife  should  rolin- 
<piish  her  dower,  in  consideration  of  tlie  transfer  of  certain  shares  of  stock  ;  Tate- 
man  v.  Porter,  9  Allen,  234,  agreement  that  real  and  jicivsonal  jiroperty  should  be 
settled  to  the  wife's  use,  in  ccmsideration  of  her  consent  to  give  up  all  inlei'Cotia 
her  husband's  estate  ;  Gough  v.  Crane,  3  Md.  Ch.  119  ;  4  Md.  316,  where  a  vei'bal 
ante-nuptial  agreement  concerning  the  wife's  chattels  and  things  in  action,  void 
T)y  the  statute  of  frauds,  had  been  part  performed.  [See,  also.  Miller  ■?•.  Good- 
win, 8  Gray,  .542  ;  Dabney  i\  Kennedy,  7  Grat.  317  ;  Sti-ong  v.  Skinner,  4  B.irb. 
546  ;  Stratton  v.  Stratton,  58  N.  H.  473  (ante-nuptial  contract  for  use  of  land 
enforced  by  husband).] 

(3)  [Reybold  v.  Herdman,  2  Del.  Ch.  34];  Chamberlain  v.  Blue,  6  Blackf.  491, 
492.     In   an   able   ojiinion   discussing    the   general    jirinciples   the   court   cited 

21 


EXTENT  AND    LIMITATIONS.  21 

an  agreement  to  compromise  a  judgment  debt,  by  accepting  a  prom- 
issory note  made  by  a  third  person  for  a  portion  of  the  amount; (4) 
an  agreement  wliich  had  been  partly  carried  out  by  a  creditor  to 
accept  and  receive  sucli  goods  of  the  debtor  as  he  might  select  iu  j)ay- 
ment  of  his  claim,  the  court  decreed  that  a  master  should  select  and 
deliver  the  residue  of  the  goods,  in  case  the  creditor  refused  to  make 
the  selection  himself;(5)  an  award  dividing  the  vats  and  liides, 
assets  of  a  firm,  equally  among  the  partners  ;(6)  a:i  agreement  between 
A.  &  B.  that  A.  should  furnish  a  large  number  of  peach  trees,  and 
that  B.  should  plant  them  on  his  fann,  market  the  fruit,  and  account 
for  the  profits ;  A.  having  furnished  the  trees  the  contract  was 
specifically  enforced  for  the  benefit  of  A.  and  his  assigns.  (7) 

Contracts  concerning  things  in  action. 

Sec.  17.  The  ancillary  and  supplementary  nature  of  the  equitable 
remedy  is  exhibited  iu  the  clearest  light  by  the  course  of  decisions 
upou  contracts  concerning  the  various  species  of  stocks. 
It    is   a   settled    rule    that    agreements    to    purchase    and    sell,    or 

approving-ly  Taylor  v.  Neville,  Buxton  v.  Lester,  and  Adderly  v.  Dixon,  and 
concluded  :  "Courts  of  equity  will  also  in  many  cases  decree  the  specific  execu- 
tion of  personal  contracts,  where  injui-y  is  apprehended,  but  not  yet  sustained." 
Per  contra,  see  Hoy  v.  Handsboroug-h,  1  Freem.  Ch.  533.  [The  leg-al  remedy  is, 
in  g-eneral,  inadeqiiate,  as  the  covenant  cannot  be  sued  upon  at  law  until  the 
covenantee  has  actually  paid  the  debt  or  suffei-ed  the  injury  against  which  he 
was  to  be  indemnified ;  Ramlaugh  v.  Hayes,  1  Yern.  189.  But  if  this  reason 
fails,  and  a  leg-al  action  is  possible,  there  is  no  ground  for  coming  into  equity  ; 
Pierce  v.  Plumb,  74  111.  326,] 

(4)  Phillips  V.  Berger,  2  Barb.  009 ;  S.  C.  on  app.,  8  id.  527.  [Contract  to  credit 
value  of  property  on  a  judgment ;  Apperson  v.  Gogin,  3  111.  App.  48  ;  agreement 
to  satisfy  a  judgment  out  of  certain  real  estate.  Weaver's  Appeal,  115  Pa.  St.  59  ; 
B^urton  v.  Landon  (Vt.),  29  Atl.  Rep.  374  (agreement  for  settlement  of  pending 
suits).] 

(5)  Very  v.  Levy,  13  How.  345.  See  in  connection,  infra,  cases  concerning 
contracts  where  vahiation  is  to  be  made  by  valuers. 

(6)  Kirksey  v.  Fike.  27  Ala.  383. 

(7;  McKnight  v.  Robbius,  1  Halsted  Ch.  229,  642 ;  and  see  Ashe  v.  Johnson,  2 
Jones  Eq.  149  ;    Sullivan  o.  Tack,   1  Md.  Ch.  59  [(agi-eement  to  dehver   crops 

22 


EXTENT  AND    LIMITATIONS.  21 

deliver  shares  of  frovornment  or  other  public  stocks,  will  not  bo 
specifically  performed  in  equity,  because  such  securities  are 
always  for  sale,  their  jirico  is  known,  and  the  damages  awarded 
at  law  will  enable    the    injured    party  to  nuiko   himself  whole   by 

pledged)];  Fui-inan  r.  Clark,  8  Sto.-kt.  ;50<; ;  .S,te\vard  v.  Winters,  4  Sandf.  Cli. 
587;  Hall  v.  Joiner,  1  Rich-.  (N'.  S.)  18(5;  Starncs  v.  Ne\vsoni(>,  1  Tenn.  (^h.  239 
[(relief  inequitable  under  the  circumstances)  ;  Dunkhart  v.  Kinehart,  SO  N.  ('. 
354  (ag-reenient  to  remove  fifteen  walnut  trees  enforced).  Rothholz  v.  Sch\vai-t/, 
4(5  N.  J.  Ec^.  477,  was  a  case  of  specific  performance  of  a  contract  for  the  sale  of 
chattels,  at  the  suit  of  the  vendor.  The  weig-ht  of  the  opinion  of  Pitney,  V.  C, 
is  lessened  by  the  fact  that  the  defense,  that  the  leg'al  remedy  was  adequate,  was 
not  taken  by  answer.  A  written  agreement  to  discontinue  an  af;tion  and  vacate 
the  judgment  entered  therein ;  in  this  case  the  remedy  by  motion  in  the  court  in 
which  the  judgment  was  rendered  Vvas  inadequate,  as  the  written  agreement  had 
been  lost ;  Deen  v.  Milne,  113  N.  Y.  303.  Agreement  to  canccd  certain  judgments 
which  wei-e  a  lien  upon  land  conveyed ;  Reilly  v.  Roberts,  C4  N.  J.  Va\.  209. 
Agi-eement  to  I'enew  the  lease  of  a  n(nvspaper ;  Floyd  v.  Stori-s,  144  Mass.  5(5. 
The  obligation  of  a  railroad  company  to  pay  dividends  ujion  preferred  stock  may  be 
enforced  by  a  decree  of  specific  performance  and  by  injunction  prohiliiting  it  fi-om 
declaring  dividends  \\\wn  common  stock  until  the  amount  claimed  ujion  the  ])7'e- 
ferred  stock  is  paid  ;  Boardmani).  Lake  Shore,  etc.,R.  Co.  84N.Y.  157.  Agreement 
to  release  from  liability  as  an  indorser ;  Baker  v.  Hawkins,  14  R.  I.  359.  Specific 
performance  at  suit  of  maker  of  a  note  to  compel  jiayee  to  indoi-se  thereon  a 
payment  which  the  maker  of  the  note  had  made,  and  to  i-ender  a  i-eceipt  therefor  ; 
Kopplein  v.  Kopjdein  (Tex.  Aji}).),  28  S.  W.  Rep.  220.  Agreement  to  redeem 
a  pledge,  White  Mountains  R.  R.  v.  Bay  State  Co.,  50  N.  H.  57  ;  covenant  to 
take  oat  a  policy  of  insurance,  Knott  v.  Manuf.  Co.,  30  W.  Va.  792.  A  contiact 
to  pay  an  attorney  for  services.  In  re  Haynes,  105  N.  Y.  5G0 ;  but  see  Millei*  v. 
Newell,  20  S.  C.  123.  Agreement  to  dispose  of  jiropei-ty  received  under  a  will, 
Cubberly  v.  Cubberly,  33  N.  J.  Eq.  82.  A  lease  of  a  railroad  for  ninety-nine 
years  contained,  among  other  covenants,  one  for  the  payment  of  monthly  install- 
ments of  rent,  which  covenants  were  guaranteed  by  other  parties  than  the  lessee. 
A  bill  which  shows  failure  to  pay  rent,  depreciation  of  the  road,  and  combination 
of  the  guarantors  and  lessee  to  divert  the  earnings  of  the  road  to  the  benefit  of 
the  guarantors,  and  which  prays  for  specific  performance  of  the  obligations  of 
the  lease,  presents  a  case  of  equitable  jurisdiction.  A  suit  at  law  on  each  install- 
ment of  rent  as  it  falls  due  is  not  an  adequate  remedy.  Pennsylvania  R.  R.  Co. 
V.  St.  Louis,  etc.,  R.  R.  Vo.,  118  U.  S.  2il0]. 

23 


22  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

puT'chashig  in  the  market. (1)  Ou  the  other  hand,  it  is  now  equally 
well  establislied  in  England  that  contracts  for  the  purchase,  sale,  or 
delivery  of  railway  and  other  similar  shares,  will  be  specifically 
enforced,  at  tlie  suit  either  of  the  purchaser  or  the  vendor.  The 
reasons  of  the  distinction,  as  given  by  the  court  in  a  leading  case,  are 
as  follows:  "  The  only  question  is  whether  there  has  been  any  deci- 
sion from  \vhence  you  can  extract  a  conclusion  that  the  court  will  not 
decree  a  specific  performance  of  an  agreement  for  the  sale  of  such 
shares.  Now  I  agree  that  it  has  been  long  since  decided,  that  you 
cannot  have  a  bill  for  the  specific  performance  of  an  agreement  to 
transfer  a  certain  quantity  of  stock.  But,  in  my  opinion,  there  is  not 
any  sort  of  analogy  between  a  quantity  of  3/.  per  cents.,  or  any 
other  stock  of  that  description  (which  is  always  to  be  had  by  any 
person  who  chooses  to  apj)ly  for  it  in  the  market),  and  a  certain  num- 
ber of  railway  shares  of  a  particular  description,  which  railway  shares 
are  limited  in  lumiber,  and  which,  as  has  been  observed,  are  not 
always  to  be  had  in  the  market. "(2)  A  contract  for  the  sale  of  shaves 
in  a  joint-stock  association  has  been  specifically  enforced,  although 
there  w^as  a  provision  in  the  deed  of  settlement  "  that  no  shareholder 
shall  be  at  liberty  to  transfer  his  shares,  except  in  such  a  manner  as 
the  board  of  directors  should  approve. "(3) 

(1)  Cud  V.  Rutter,  1  P.  Wms.  570  ;  Cappun  v.  Harris,  Bunnb.  135  ;  Nutbrown 
V.  Thornton,  10  Ves.  161,  per  Ld.  Eldon  ;  Doloret  v.  Rothschild,  1  S.  &  S.  590  ; 
Shaw  V.  Fisher,  5  D.  G.  M.  &  G.  596. 

(2)  Duncuft  V.  Albrecht,  12  Sim.  189,  per  Sir  L.  Shadwell,  V.  C,  afterwards 
affirmed  by  the  L.  C.  ;  Shaw  v.  Fisher,  2  DeG.  &  Sm.  11 ;  5  DeG.  M.  &  G.  596  ; 
Wynne  r.  Price,  3  DeG.  &  Sm.  310  ;  Wilson  v.  Keating.  7  W.  R.  (M.  R.)  484  ; 
Cheale  v.  Kenward,  3  De  G.  &  J.  27.  [For  the  remedy  of  the  legal  or  equitable 
owner  against  the  corporation  to  compel  the  transfer  or  issue  of  stock,  see  3 
Pom.  Eq.  Jur.  §  1412.] 

(3)  Poole  V.  Middleton,  29  Beav.  646,  per  Ld.  Romilly,  M.  R.  In  Doloret  v. 
Rothschild,  1  S.  &  S.  590,  Sir  John  Leach  held  that  a  contract  for  the  purchase 
of  Napolitan  stock  should  be  specifically  enforced,  when  the  bill  prayed  for  the 
delivery  of  the  certificates  which  would  constitute  the  plaintiff  proprietor  of  a 
certain  quantity  of  the  stock,  for  the  reasons,  as  he  said,  that  "  a  court  of  law  could 
not  give  the  property,  but  could  only  give  a  remedy  in  damages,  the  beneficial 
effect  of  which  must  depend  upon  the  personal  responsibility  of  the  party.  I  con- 
sider, also,  that  the  plaintiff,  not  being  the  original  holder  of  the  scrip,  but  merely 
the  bearer,  may  not  be  able  to  maintain  any  action  at  law  upon  the  contract,  and 
that  if  he  has  any  title,  it  must  be  in  equity."  See,  also,  Colt  v.  Nettervide,  2 
P.Wms.  304.  A  sjiecific  performance  of  contracts  for  sale  and  purchase  or  delivery 
of  such  shares  is  now  a  matter  of  every -day  occurrence  in  England,  complicated, 

24 


EXTENT  AND   LIMITATIONS.  23 

Sec.  18.  These  reason?',  which  liave  led  the  English  courts  to  draw 
so  sharp  a  distinction  between  government  and  other  imblic  stocks 
and  shares  in  companies,  do  not  apply  with  all  their  force  in  this 
country.  The  English  companies  are  not,  in  general,  cor[)orations,  but 
are  joint-stock  associations,  or  modified  partnerships.  Although  organ- 
ized under  statute,  their  powers  are  largely  derived  from,  and  regu- 
hited  by,  the  articles  of  association  or  deed  of  settlement  entered  into 
h)''  the  members  of  each  company  by  itself.  Althougli  their  shares  are 
bought  and  sold  in  the  market,  yet  the  modes  of  the  tiansfer  are  always 
cumbrous,  and  often  very  much  restricted  by  the  n^gulations  of  the 
settlement  deed.  In  this  country,  the  companies  issuing  stock  are, 
with  very  few  exceptions,  corporations,  their  charters  either  being 
special  acts  of  the  legislature,  or  formed  in  pursuance  of  general 
statutes.  By  the  universal  customs  of  the  stock  market  and  of  busi- 
ness men,  certificates  of  stock  are  transferred  by  delivery,  and  this 
method  is  recognized  by  the  law  as  conferring  a  complete  benelicial  title 
upon  the  assignee.  In  short,  the  shares  of  stock  corporations  in  this 
country  are  regulated,  bought,  sold,  and  transferred  with  as  much 
ease  and  publicity  as  the  national  or  state  governmental  securities, 
or  the  public  debt  of  England.  The  same  is  true  of  the  coupon  bonds 
issued  by  our  great  business  and  municipal  corporatioTis,  which  are 
transferred  by  delivery,  like  negotiable  notes  payable  to  bearer,  and 
which  are  constantly  bought  and  sold  in  all  the  financial  markets  of 
the  country  to  an  enormous  extent.  These  facts  make  it  very  clear 
that  the  reasons  upon  which  the  English  judges  have  based  their 
recent  decisions,  above  cited,  concerning  contracts  for  the  sale  or 
delivery  of  shares,  have  little  or  no  force  when  apjtlied  to  similar 
agreements  in  the  United  States,  and  the  American  courts  might 
well  refuse  to  adopt  those  reasons  and  follow  those  decisions,  without 

however,  by  the  varying  and  often  minute  provisions  respecting  the  mode  of  trans- 
fer found  in  the  articles  of  different  companies,  and  by  the  customs  of  the  Lou- 
don Stock  Exchange.  The  following  are  recent  cases  on  the  subject :  Berming- 
ham  V.  Sheridan,  33  Beav.  660,  66.5;  Robinson  v.  The  Chartered  Bank,  Law  Rep. 
1  Eq.  32 ;  Cheale  v.  Kenward,  3  DeG.  &  Jo.  27  ;  Jackson  v.  Cocker,  4  Beav.  m  ; 
New  Brunswick,  etc.,  Co.  v.  Muggei-idge,  4  Drew.  686  ;  Oi-iental  Inland  Steam  Co. 
V.  Briggs,  2  J.  &  H.  625  ;  Sheffield  Gas,  etc.,  Co.  v.  Harrison,  17  Beav.  294  ;  Har- 
ris V.  North  Devon  Railway  Co.  20  Beav.  384 ;  Hawkins  v.  Maltby,  L.  R.  3  Ch. 
188  ;  L.  R.  4  Ch.  200 ;  L.  R.  6  Eq.  505 ;  Emmerson's  Ca.se,  L.  R.  1  Ch.  433  ;  Coles 
V.  Bristowe,  L.  R.  4  Ch.  3 ;  L.  R.  6  Eq.  149  ;  Cruse  v.  Paine,  L.  R.  4  Ch.  441  ; 
L.  R.  6  Eq.  641  ;  Merry  v.  Nickalls,  20  W.  R.  (L.  J.)  929  ;  27  L.  T.  (N.  S.)  12 ;  2(> 
W.  R.  531  ;  26  L.  T.  (N.  S.)  496  ;  Rennie  v.  Mon-is,  L.  R.  13  Ecp  203  ;  Paine  v. 
Hutchinson,  L.  R.  3  Ch.  388  ;  L.  R.  3  Eq.  257 ;  Hodgkinson  v.  Kelly,  L.  R.  6  Eq 
496 ;  Evans  v.  Wood.  L.  R.  5  Eq.  9  ;  Shepherd  v.  Gillespie,  L.  R.  5  E(].  293. 

25 


24  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

infringing,  in  the  slightest  degree,  upon  the  equitable  doctrines 
relating  to  speciiic  performance,  which  the  tribunals  of  botli  nations 
equally  recognize  and  administer  by  their  judgments. 

iSec.  19.  I'he  decisions  by  the  courts  of  this  country  are,  as  might 
be  exi)ected,  conflicting.  In  some  cases  it  has  been  held,  following 
the  English  doctrine  iraj)licitly,  that  shares  in  a  railroad  or  other 
similar  company,  differ  from  government  securities,  that  they  do  not 
liave  a  specific  value,  and  are  not  ahvays  to  be  found  in  the  market, 
and  that  contracts  for  their  purchase,  sale,  or  delivery  will  be  specill- 
cally  enforced. (1)  Other  cases  simply  hold  that  the  specific  perfoim- 
ance  of  a  contract  for  the  transfer  or  delivery  of  stocks  may  be  decreed 
where  there  is  no  adequate  legal  remedy. (2)  The  weight  of  Ameri- 
can authority,  however,  seems  to  be  in  favor  of  the  rule  that  stocks 
of  business  corporations,  at  all  events  when  they  are  commonly  sold 
in  the  market,  stand  upoti  the  same  footing  as  public,  governmental 
securities,  and  that  the  legal  remedy  of  damages  for  the  breach  of  a 
contract  is  as  adequate  a  remedy  in  the  one  case  as  in  the  oiher. 
Certainly,  there  can  be  no  valid  distinction,  in  this  respect,  between 
shares  of  stock  in  banks,  insurance  companies,  railway  companies, 
manufacturing  corporations,  and  the  like,  if  they  are  all  customarily 
for  sale  in  the  public  market,  and  many  of  the  decisions  do  not  insist 
on  or  even  allude  to  this  limitation  as  necessary. (H)  (4) 

Sec.  20.  Analogous  to  the  case  of  shares,  under  the  English  rule,  is 
that  of  things  in  action.  Contracts  for  the  purchase,  sale,  or  assign- 
ment of  things  in  action,  wuU  often  be  enforced  at  the  suit  of  the  pur- 
chaser, by  compelling  the  vendor  to  transfer  and  deliver,  where  the 
legal  damages  might  be  too  uncertain  and  conjectural  to  constitute  an 
adequate  compensation.     And,  as  the  remedy  must  be  mutual,  the 

(1)  Ache  t'.  Johnson,  2  Jones  Eq.  149.  See  Baldwin  v.  Commonwealth,  11  Bush. 
417,  m  i-espect  to  a  sale  of  turnijike  stock  made  by  state  commissionfMS. 

(2)  Todd  V.  Taft,  7  Allen,  371;  Leach  77.  Forbes,  11  Gray,  506;  Ti-easui-er  r. 
Commercial,  etc.,  Co.,  23  Cal.  390.  [In  Leach  v.  Forbes,  and  in  Perin  v.  Megil)bcn, 
49  Fed.  Re]i.  183 ;  S.  C.  on  appeal,  53  Fed.  Rep.  86,  3  C.  C.  A.  443,  the  agree- 
ment for  the  sale  of  shares  v/as  merely  incidental  to  the  main  contract,  which 
was  for  the  transfer  of  the  company's  real  estate  and  "plant."  In  Perin  i\ 
Megibben  speciiic  performance  was  decreed  at  the  suit  of  the  vendor.] 

(3)  Cowles  ■('.  Whitman,  10  Conn.  121,  124 ;  Brown  ?>.  Gilliland,  3  Dessau.  5;]rt, 
.541 ;  Bissell  -?'.  Farm.  &  Mech.  Bank  of  Mich.  5  McLean,  495  ;  Fergur^on  v. 
Paschall,  11  Mo.  267  ;  Austin  v.  Gillespie,  1  Jones  Eq.  2dl  ;  Strasbourg  R.  R.  Co. 
V.  Echternact,  21  Pa.  St.  220;  Gram  v.  Stebbins,  6  Paige,  124;  [Eckstein  v.  Do^\l:- 
ing,  64  N.  H.  248  ;  Avery  v.  Ryan,  74  Wis.  591,  600 ;  Barton  v.  De  Wolf,  108  111. 
195  (fact  that  the  stock  is  seldom  on  the  market  no  ground  for  specific  per.'crm- 
ance)  ;  De  La  Cuestra  v.  Insui-ance  Co.  136  Pa.  St.  62,  78 ;  Northern  Trust  Co. 
V.  Markell  (Minn.),  63  N.  W.  735  (June  7,  1895) ;  Foil's  Appeal,  91  Pa.  fc-t.  434]. 
Cowles  V.  Whitman,  stijrra,  related  to  bank  stock.  A  contract  to  deliver  govern- 
ment bonds  or  marketable  railv/ay  shai-es  will  not  be  specitically  enforced,  per 
Dillon,  J.,  in  Fallon  v.  R.  R.  Co.  1  Dill.  121  ;  Ross  v.  Union  Pac.  R.  R.  1  Woolw. 
23,  38  [per  Miller,  J.];  Carpenter  v.  Ins.  Co.  4  Sandf.  Ch.  408;  Lowry  v. 
Muldrow,  8  Rich.  Eq.  241 ;  McGowin  v.  Remington,  12  Pa.  St.  56 ;  Sullivan  v. 
Tuck,  1  Md.  Ch.  59;  Waters  v.  Howard,  1  Md.  Ch.  112  ;  [see  Chaffee  v.  Middlesex 
R.  R.  146  Mass.  224 ;  Rollins  Investment  Co.  v.  George,  48  F(id.  Rep.  776  (bonds 
of  a  municii^ality).  The  following  recent  authorities  favor  the  view  that  agree- 
ments to  sell  stocks  that  are  seldom  or  never  to  be  obtained  in  the  market,  or 
which  have  no  recognized  market  value,  may  be  specifically  enforced  :  New 
England  Trust  Co.  v.  Abbott  (Mass.),  38  N.  E.  432  (Oct.  18,  1894)  ;  Manton  v. 
Ray  (R.  I.),  29  Atl.  Rep.  998  (July  26,  1894) ;  Johnson  v.  Brooks,  93  N.  Y.  337. 
Goodwin  Gas  Stove  Co. 's  Appeal  (Pa.),  12  Atl.  Rep.  736;  Frue  v.  Houghton,  6 
Colo.  318,  325;  Bumgardner  v.  Leavitt  (W.  Va.),  13  S.  E.  67.  In  the  last  case 
the  agreement  was  enfoi'ced  against  the  purchaser,  on  the  ground  of  iiiutuality 
of  remedy.     Contra,  Barton  v.  De  Wolf,  108  111.  195]. 

(4)  A  contract  to  pay  dividends  in  a  specified  way  may  be  specifically  enforced  ; 
Boardman  v.  Lake  Shore  R.  R.,  84  N.  Y.  157.  A  subscriber  for  stock  upon  sale 
thereof  with  a  covenant  by  the  purchaser  to  discharge  the  subscriber's  liability 
to  the  corporation,  may  compel  a  specific  ]ierformance  bv  the  i)urchaser ;  Wood- 
rutf  V.  Erie  Rv.  Co.  93  N.  Y.  609. 

26      '. 


EXTENT  A.\n    LIMITATIOSS.  25 

vendor  may, also  maintain  his  action  for  a  specific  perlbruiancc,  and. 
compel  payment  of  the  pnn'hase-monoy.(l)  The  following  are  illus- 
trations :  An  agreement,  by  the  assig'nee  of  certain  debts,  which  liad 
been  proved,  under  a  commission  of  bankruittcy,  airainst  the  debtor, 
agreed  to  sell  them  to  a  third  i)ersou  for  2s.  6d  on  tlie  pdund.  A 
specilic  performance  was  decreed  in  a  suit  brought  by  the  vendor.(2) 
An  agreement  for  the  i)urchase  of  an  annuity,  })ayabl(>  out  of  certain 
funds  standing  in  the  court  of  chancery,  has  also  been  enfitrced  at  suit 
of  the  vendor,(o)  and  also  an  agreement,  for  the  purchase  of  a  life 
annuity  ;(1)  and  a  contract  to  purchase  a  debt.(5)  On  the  same  i)rin- 
ciple,  because  its  value  is  uncertain  and  conjectural,  and  there  is  no 
accurate  measure  of  damages,  a  contract  for  the  sale  of  a  ])atent  right 
will  be  specilically  eidbrced  against  the  vendor  by  compelling  liim  to 
execute  and  deliver  an  assignment ;  and  consequently  the  vendor 
may,  by  a  suit  of  the  same  sort,  compel  the  purchasers  to  accept  the 
transfer  and  pay  the  purchase  price. (6) 

(1)  The  vendor's  remedy,  in  the  absence  of  special  circumstances,  was  denied 
in  Lochmann  v.  Meehan,  21  N.  Y.  S.  38i). 

(2)  Addei-ley  v.  Dixon,  1  S.  &  S.  GOT,  per  Sir  Johx  Leech  :  "The  present  case 
being-  a  contract  for  the  sale  of  the  uncertain  di\'idends,  which  may  become  pay- 
able from  the  estate  of  a  bankrupt,  it  api)ears  to  me  that,  upon  the  principles 
established  by  the  cases  of  Ball  v.  Cog-f^s,  and  Taylor  v.  Neville,  .a  (lourt  of  equity  • 
will  decree  specific  performance,  because  damag-es  at  law  cannot  accurately 
represent  the  value  of  future  dividends ;  and  to  compel  this  purchaser  to  take 
such  damag-es  would  be  to  comjiel  him  to  sell  those  dividends  at  a  conjectural 
price.  It  is  true  that  the  present  bill  is  not  filed  by  the  purchaser,  but  by  the 
vendor,  v,ho  seeks  not  the  iincei-tain  tlividends,  but  the  certain  sum  to  be  i)aid  for 
them.  It  has,  however,  been  settled  by  i-(;peated  decisions,  that  the  i-emedy  in 
e(]uity  muot  l^e  mutual,  and  that  where  a  bill  will  lie  foi-  the  juirchaser,  it  will 
also  lie  for  the  vendor."  And  see  Cutting-  -!>.  Dana,  2.^  N.  J.  Va\.  2()r).  [Agreement 
to  assi<rn  a  chose  in  action  to  indemnify  a  surety,  Shockley  v.  Davis,  17  Ga.  177.] 

(•J)  Withy  V.  Cottle,  1  S.  &  S.  174,  per  Sir  John  Leech  :  "There  can  be  no  doubt 
that  the  defendant,  who  is  the  purchaser  of  this  annuity,  mig-ht  have  filed  a  bill 
for  the  specific  performance  of  the  ag-reement  for  sale  to  him,  because  a  court  of 
law  could  not  g-i^e  him  the  subject  of  his  contract,  and  the  i-emedy  here  must  be 
mutual  for  purchaser  and  vendor."  See  Clifford  v.  Turrell,  1  V.  &  C.  C.  C.  138  ; 
9  Jur.  G33. 

(4)  Kenney  v.  Wexham,  6  Mad.  3.'5.5,  357. 

(."))  Wright  V.  Bell,  5  Price,  32.j.  In  Cutting  v.  Dana,  2.")  N.  J.  Eq.  2t)r),  it  was 
hel  I  that  a  contract  for  the  sale  of  a  del)t  would  be  specifically  enforced  in  equity, 
where  there  was  no  adequate  remedy  at  law,  or  where  some  other  ecjuitable  fea- 
tui  e  wa-;  present ;  foi*  example,  where  the  creditoi-s  of  an  insolvent  firm  ag-reed  to 
sell  their  claims  against  it  to  one  of  their  number,  at  twenty-five  cents  on  the 
dollar;  [see  also  Gottschalk  v.  Stein  (Md.).  13  Atl.  Hep.  62.5].  A  contract  to 
deliver  a  pai  1-up  life  insurance  jiolicy,  for  a  certain  sum,  has  been  specifically 
enforced  against  the  insurance  com] )any  Hughes  ■??.  Piednumt,  et(-..  Life  Ins.  Co. 
55  Geo.  Ill ;  and  also  a  contract,  by  the  holder  of  notes,  to  deliver  them  up  to 
the  maker  to  be  canceled.  Tuttle  f.  Moore,  16  Minn.  123;  an  agreement  to 
assign  a  contract  between  defendant  and  a  third  person.  Woodward  v.  A.spin- 
wall,  3  Sandf.  272. 

(6)  Cogent  v.  Gibson,  33  Beav.  557  ;  Corbin  7-.  Tracy,  34  Conn.  325  ;  Some]-by  r. 
Buntin,  118  Mass.  279  ;  Binnev  v.  Annan,  107  Mass.  94  ;  Klv  v.  Mclvav,  12  Allen, 
323;  [Ilidlv.  Ritrat,  4.')  Fed.  Rep  !>4  ;  Newell  v.  West,  13'Blatch.  li4  ;  Reese's 
Appeal  (Pa.),  15  Atl.  Rep.  807  ;  Satterthwait  v  Marshall,  4  Del.  Ch.  337  ;  Black- 
mer  v.  Stone,  51  Ark.  480  ;  Nichols  v.  Marsh,  61  Mich.  500  ;  Hajigood  v.  Rosen- 
stock,  23  Fed.  Reji.  8C.  An  agreement  to  assign  ])atent  rights  to  1)0  obtained  at 
future  times  may  be  enforced,  by  ordering  the  party  to  make  a  formal  assign- 
ment, and  also  to  make  applic-ation  for  the  ])atent,  which,  in  such  case,  woidd 
issue  to  the  assignee;  Ramstetlei-  v.  Atkinson,  4  McArthur,  382;  Adams  r.  Mes- 
singer,  147  Mass.  185  (patent  to  Ix;  ol)tain«*d  in  a  foreign  country).  A  verbal 
agreement  will  pass  the  equitable  titl(! ;  Somerby  ?'.  Biuitiu  ;  Whitm-y  1'.  Bun-,  115 
111.  2S0  ;  Searle  v.  Hill,  73  Iowa,  367  (j)arol  ('xtn-utoi-y  agi-eement  to  assign  i>atent 
may  be  enforced).  An  agreement  to  gi\-e  a  license  to  use  a  jiatented  article  will 
be  enforced  ;  Nichols  xi.  Marsh,  61  Micdi.  509.  See,  also.  Fuller,  etc.,  Manuf.  Co. 
V.  Bartlett,  68  Wis.  74  ;' Washburn  &  Moen  Manuf.  Co.  v.  Chicago  Fence  Co.,  100 
111.  71  (contract  by  licen.ser  that  his  licensei;  shall  not  be  rei|uired  to  i)ay  a 
greater  i-ovaltv  than  a  luiiucd  r:<-ensee,  laifurced)]. 

27 


26  SPECIFIC   I'KRFORMAyCE    OF  CONTRACTS. 

Awards. 

Sec.  21.  The  specific  enforcement  of  awards  is  governed  by 
exactly  tlie  same  principles  Avhich  regulate  the  equitable  jurisdiction 
in  its  application  to  contracts.  If  the  provisions  of  the  award  are  of 
such  a  nature  that,  had  they  constituted  an  agreement  between  the 
parties,  it  would  have  been  enforced  by  a  court  of  equity,  then  a 
specific  performance  of  the  award  itself  will  be  decreed ;  otherwise  it 
will  not  be  decreed.  Considered  in  respect  to  its  capability  of  being 
specifically  enforced,  an  award  is  not  looked  upon  as  a  decision  ema- 
nating from  the  arbitrators,  but  rather  as  a  continuation  and  consum- 
mation of  the  contract  by  w^hich  the  parties  submitted  their  matters  in 
controversy  to  arbitration,  and,  impliedly  at  least,  undertook  to  abide 
by  the  result  (1)  In  jmrsuance  of  these  principles,  an  award,  like  a 
contract,  which  directs  the  doing  of  anything  in  sjjecie,  within  the 
power  of  the  court  to  enforce — as,  for  example,  the  conveyance  of  land, 
or  the  assignment  of  things  in  action,  mS,y  be  specifically  per- 
formed; (2)  or  where  it  directs  the  delivery  of  certain  specific  chattels, 
and  no  adequate  remedy  could  be  had  by  a  recovery  of  damages. (3) 
But  an  award,  which  simply  orders  a  payment  of  money,  will  not,  it 
seems,  be  specifically  enforced  in  equity. (4) 

Contracts  for  personal  acts. 

Sec.  22.  In  all  the  s[)ecies  of  contracts  to  which  reference  has,  tlius 
far,  been  made,  the  subject-matter   has    been    things — lands,  chat- 

(1)  Blackett  v.  Bates,  L.  R.  1  Ch.  117,  reversing  S.  C,  2  H.  &  M.  270,  per  Ld. 
Ch.  Cranworth  :  "  The  rights  of  the  parties,  in  respect  of  specific  performance, 
are  the  same  as  if  the  award  had  been  simply  an  agreement  between  them.  Had 
it  been  an  agreement,  would  there  have  been  a  case  for  specific  performance  'i 
I  think  not,  and  for  this  short  and  simjile  reason,  that  the  court  does  not  grant 
specific  iiei'foi-mance  unless  it  can  give  full  relief  to  both  parties."  In  Wood  ?>. 
Griffith,  1  Sw.  54,  Ld.  Eldon  said,  the  court  exercises  jurisdiction,  "because 
the  awaj'd  supposes  an  agreement  between  the  parties,  and  contains  no  more  than 
the  terms  of  that  agi-eement  ascertained  by  a  third  person."  See  Nickels  v.  Han- 
cock, 7  DeG.  M.  &  G.  300. 

(2)  Norton  v.  Mascall,  2  Vern.  24 ;  Hall  v.  Hardy,  3  P.  Wms.  187 ;  and  see  Mc- 
Neil ?>.  Magee,  5  Mas.  245;  Jones  v.  Boston  Mill  Corpn.,  4  Peck,  507;  Davis  v. 
Havard,  15  S.  &  R.  165,  171  ;  Somerville  v.  Truman,  4  Har.  &  McH.  43 ;  Wood  v. 
Shepherd,  2  Patton  &  Heath,  442  (Va.) ;  Cook  v.  Vick,  2  How.  (Miss.)  882.  Eijuity 
will  specifically  enforce  an  award  concerning  land,  or  an  agreement  for  the  pur- 
chase or  sale  of  land,  although  the  enforcement  of  an  award  for  the  payment  of 
money  is  also  involved  in  the  relief.  Memphis,  etc.,  R.  R.  v.  Scruggs,  50  Miss. 
284.     See,  also,  Overby  v.  Thrasher,  47  Geo.  10. 

(3)  Story  v.  Norwich,  etc.,  R.  R.,  24  Conn.  94  ;  Kirksey  V.  Fike,  27  Ala.  383. 

(4)  Hall  V.  Hardy,  3  P.  Wms.  187  ;  and  see  Story  v.  Norwich,  etc.,  R.  R.  24 
Conn.  94;  Bubier  v.  Bubier.  24  Me.  42  ;  Turpin  v.  Banton,  Hardin,  312.  As  to 
the  enforcement,  in  equitjs  of  awards  legally  invalid,  see  Viele  v.  Troy  &  Bost. 
R.  R.,  21  Barb.  381 ;  Bouck  v.  Wilbej-,  4  Johns.  Ch.  405 ;  Buys  v.  Eberhardt,  3 
Mich.  524  ;  Cook  v.  Vick,  2  How.  (Miss.)  882. 

28 


EXTENT  AM>    IJM I TA'I lO.WS.  27 

tels,  or  things  in  action.  The  particular  rules  which  have  been 
established  in  reference  to  the  speciiic  execution  of  agreements 
stipulating  merely  for  personal  acts  or  omissions,  also  exhibit,  in 
the  most  striking  manner,  the  ancillary  and  suiiplementary  nature 
of  the  remedy.  As  a  general  proposition,  contracts  which  pro- 
vide for  the  personal  atiirmative  acts,  or  personal  services  of  tlu; 
parties,  are  not  specifically  enforced  in  equity,  not  because  the  legal 
remedy  of  damages  is  always  sufliciently  certain  and  adecjuate,  but 
because  the  courts  do  not  possess  the  means  and  ability  of  enforcing 
their  decrees,  which  would  necessarily  be  very  special,  and  of  com- 
pelling the  performance  which  constitutes  the  equitable  remedy.(l) 
Wherever,  from  the  nature  of  the  agreement,  the  difficulty  in  the  way 
of  granting  relief  does  not  exist,  or  can  be  obviated,  the  principles  and 
rules  of  specific  performance  apply  to  contracts  which  stipulate  for 
personal  acts  or  omissions,  as  well  as  to  those  whose  subject-matter  is 
real  or  personal  property.  A  few  examples  of  such  application  will 
suffice  as  illustrations.  Agreements  for  a  separation  betTveen 
husband  and  -wife,  if  valid  in  form,  made  upon  a  sufficient  con- 
sideration, and  executed  by  parties  legally  able  to  contract,  will  be 
specifically  enforced  by  decreeing  the  execution  and  delivery  of  the 
proper  deed,  and  by  restraining  the  husband,  if  necessary,  from  per- 
sonally interfering  with  and  molesting  his  wife,  in  violation  of  his 
covenant. (2)  8uch  contracts,  in  order  to  be  enforced,  nnist  be  based 
upon  a  valuable  consideration,  accruing  to  the  benefit  of  the  hus- 
band ;(8)  and  in  England,  a  third  person,  other  than  the  wife,  nnist 
intervene  as  the  contracting  party  on  her  behalf,  although  she  gen- 
erally executes  the  agreement,  in  order  to  show  her  assent. (4)  It  is 
plain  that,  for  the  breach  of  these  agreements,  damages  would  be 
wholly  inadequate,  and  it  \vould  seem  that  no  legal  measure  of  dam- 
ages is  possible — ('.  e.,  anything  but  a  mere  conjecture. 

(1)  [Sep,  further,  as  to  conti-acts  requirini^  personal  service,  note  to  Danforth 
V.  Philadehhia,  etc.,  R.  11.,  30  N.  J.  Eq.  12".] 

(2)  Wilson  V.  Wilson,  1  II.  L.  Cas.  538  ;  5  II.  L.  Cji-s.  40  ;  14  Sim.  405  ;  Fletcher 
V.  Fletcher,  2  Cox,  90  ;  Sanders  v.  Rodwav.  22  L.  J.  Ch.  (N.  S.)  230;  McCrocklin 
V.  McCrocklin,  2  V,.  Uon.  370 ;  Giljh.s  v.  Ilardini,',  L.  R.  5  Ch.  33() ;  S.  C,  L.  R.  S 
Kq.  400.  {Contra,  on  g-rnnnds  of  public  jxtlicy  and  morality,  in  New  Jei"sey  ; 
Aspinwall  v.  Aspinwall,  40  N.  J.  Eq.  302.] 

(3)  Wilson  V.  Wilson,  sujn-a;  Wellesley  v.  Wellesley,  10  Sim.  256;  Stephen.s  v. 
Olive,  2  Uro.  C.  C.  00;  Earl  of  Westme'ixth  v.  Counte.s.s  of  We.stmeath,  Jac.  120, 
141 ;  Elworthy  v.  Bird,  2  S.  &  S.  372  ;  Ilobhs  v.  Hull,  1  Cox,  445. 

(4)  Hope  V.  Hope,  26  L.  J.  Ch.  417;  Wilkes  v.  Wilkes,  2  Dick.  701  ;  compare 
Vansittart  v.  Vansittart,  4  K.  &  J.  02.  Query.  Whether  such  third  2ierson  would 
be  necessary  in  those  states  of  this  country  which  have  so  g-reatly  enhirg'ed  the 
wife's  ]iower  to  contract,  especially  if  the  agrecnuent  related,  in  any  way,  to  her 
own  soai-ate  property. 

29 


28  SPECIFIC   PEKFORMANCE    OF   CONTRACTS. 

Contracts  for  building  and  construction. 

iSec.  2o.  The  gou(3ral  rule  i.s  now  well  .settled,  that,  on  account  of  the 
great  difficulty  and  often  impossibility  attending  a  judicial  superin- 
tendence and  execution  of  the  j)erforniance,  contracts  for  the  erection 
or  repair  of  buildings,  the  construction  of  works,  and  the  conduct  of 
operations  requiring  time,  special  knowledge,  skill,  and  personal  over- 
.sight,  will  not  be  specifically  enforced. (1)  Notwithstanding  this  gen- 
eral rule  and  the  cogent  reason  which  supports  it,  there  are  certain 
exceptions  ;  and  contracts  for  building  or  for  the  construction  of  works, 
and  the  like,  falling  within  them,  may  be  specifically  enforced.  1.  It 
has  been  said  that  if  an  agreement  for  erecting  a  building  is  in  its  nature 
defined,  there  is  no  difficulty  in  entertaining  a  suit  for  its  specific  per- 
formance. (2)  But  a  contract  to  build  a  house  of  a  certain  value  merely, 
does  not  come  within  this  description  of  an  agreement  sufficiently 
defined,  and  will  not  be  enforced.(3)  2.  Whether  or  not  the  opinion  of 
Ld.  RossLYN  is  to  be  regarded  as  a  correct  statement  of  the  law,  it  is 
settled  by  the  recent  English  decisions,  that  w^here  the  defendant  has 
contracted  to  construct  some  work  which  is  defined  on  his  own  land, 
and  where  the  plaintiff  has  a  material  interest  in  the  execution  thereof, 
which  is  not  suscex'tible  of  adequate  compensation  in  damages,  a  spe- 
cific performance  of  the  undertaking  will  be  compelled.(4)   3.  Where  the 

(1)  Paxton  V.  Newton,  2  Sim.  &  Giff.  437 ;  Errington  v.  Aniiesley,  2  Bro.  C.  C 
341;  2  Dick.  692;  Lucas  v.  Commerford,  .S  Bro.  C.  0.  IGG  ;  Mosely  v.  Virgin,  3 
Ves.  184  ;  e.  g.,  to  make  good  a  gravel  pit,  Flint  v.  Branton,  8  Ves.  159  ;  the  con- 
struction of  a  bi'anch  railway,  So.  Wales  Ry  Co.  v.  Wythes,  1  K  &  J.  186;  5 
De  G.  M.  &  G.  880  ,  an  agi-eement  between  two  railroad  companies,  by  which  one 
agreed  to  construct  the  road  and  the  other  run  it,  Port  Clinton  R.  R.  v.  Cleveland 
&  Toledo  R.  R.  13  Ohio  St.,  544;  and  see  Fallon  v.  R.  R.  Co.  1  Dillon,  121 ;  Ross 
V.  Union  Pacitic  R.  R.  1  Woolworth,  26 ;  [Oregonian  R.  Co.  v.  O  R.  &  N.  Co. 
37  Fed.  Rep.  733;  Texas,  etc.,  Ry.  Co.  v.  Rust,  17  Fed.  Rep.  275;  Kansas  Con- 
struction Co.  V.  Topeka  R.  R.,  135  Mass.  34;  Danfortli  v.  Philadelphia,  etc.,  Ry. 
30  N.  J.  Eq.  12 ;  Thayer  %y  Star  Mining  Co.  105  111.  540 ;  Lawrence  t).  Saratoga 
R.  R.  Co.  36  Hun,  467  ;]  to  work  quarries,  Booth  v.  Pollard,  4  Y.  &  C.  Ex.  61 ;  to 
work  a  quarry  and  deliver  marble  in  cei-tain  kinds  and  quantities,  Marble  Co.  v. 
Ripley,  10  Wall.  339;  to  work  coal  mines,  Pollai-d  v.  Clayton,  1  K.  &  J.  402;  [to 
drain' lands,  McCarter  ■?).  Armstrong,  32  S.  C.  203  ;  to  erect  a  public  building  of 
a  sjiecified  character,  Kendall  v.  Frey,  74  Wis.  26  ;  to  remove  a  nuisance,  Minne- 
apolis Mill  Co.,  31  Minn.  390.]  There  were  early  decisions  or  opinions  contra,  see 
Buxton  V.  Lister,  3  Atk.  385,  per  Lord  Hardwickb  ;  City  of  London  v.  Nash,  3 
Atk.  512;  1  Ves.  Sen.  12.  It  is  settled  that  a  covenant  to  repair  wdll  not  be 
specifically  enforced,  Raynor  v.  Stone,  2  Eden.  128,  130(n.)  ;  Hill  v.  Barclay,  Ki 
Ves.  402,  405. 

(2)  Mosely  v.  Virgin,  3  Ves.  185,  per  Ld.  Rosslyn  ;  Cubitt  v.  Smith,  10  Jur. 
(N.  S.)  1123;  Flint  v.  Brandon,  8  Ves.  159,  164;  Phillips  v.  Soule,  9  Gray,  233; 
Moore  v.  Gi-eg,  12  Jar.  952 ;  [Willard  v.  Ford,  16  Neb.  5-43.] 

(3)  Brace  v.  Wehnert,  25  Beav.  .348.  The  operative  part  of  the  contract  was  to 
build  a  house,  worth  1400Z.  at  least,  and  no  plan  was  adopted.  See,  also,  Norris 
w.  Jackson,  1  J.  &  H.  319. 

(4)  Storer  v  Great  Westeni  Ry.  Co.  2  Y.  &  C,  C.  C.  48  ;  Sanderson  ■?).  Cocker- 
mouth,  etc.,  Ry.  Co.  11  Beav.  497.  In  these  cases  the  i-ailway  companies  were 
directed  to  fulfill  their  agreements  by  making  and  maintaining  arch-ways  under 
.their  tracks,  so  that  plaintilf  might  have  access  with  teams  from  one  part  of  his 

30 


EXTKNT  AMD    IjI  MITATIOSS.  29 

defendant  has  undertaken  to  construct  certain  works  upon  land 
acquired  by  conveyance  ii-oiu  the  plaintitl,  so  that  the  plaintitt',  liav- 
ing  parted  with  hia  laud,  cannot  erect  the  stipulated  structures  thereon 
at  his  own  cost,  and  thus  ascertain  the  amount  which  he  should  be 
entitled  to  recover  from  defendant  as  damages  for  the  breach  of  the 

land  to  another,  which  were  separated  by  the  rodd.  Greene  v.  West  Cheshire 
R'y  Co.,  L.  R.  13  Eq.  44  ;  Wilson  v.  Furness  R'y  Co.,  L.  R.  9  Eq.  28  ;  Attorney- 
General  V.  Mid.  Kent  R'y  Co.  and  So.  Eastern  R'y  Co.,  L.  R.  3  Ch.  100  ;  Lytton  v. 
Gi-eat  Northern  R'y  Co.  3  K.  &  J.  394.  In  Franklin  v.  Tuton,  5  Madd.  4()!t,  Sir 
John  Lkach  compelled  the  defendant  to  alter  the  elevation  of  the  house,  which  he 
had  built  on  land  leased  from  the  plaintiti",  pursuant  to  his  covenant  to  erect  the 
house  of  a  certain  heig-ht,  which  he  hail  not  done.  In  Lane  v.  Newdigate,  10  Ves. 
192,  Ld.  Eldon,  by  a  mandatory  injunction,  compelled  the  defendant  to  repair  u 
canal,  in  pursuance  of  his  covenant,  for  plaintiff's  benefit.  In  Middleton  v.  Green- 
wood, 2  DeG.  J.  &  S.  142,  defendant  agreed  to  grant  the  plaintiff  a  lease  of  a 
public  house,  "  and  to  make  and  form  a  spirit  vault,  and  put  in  plate-glass  win- 
dows, and  do  evei'ything  therewith  necessary  at  his  own  expense,  and  paint  new 
the  outside  of  all  the  woodwork,  as  well  as  put  the  slates,  chimney  i)ots,  and 
roofing  in  thorough  repair."  Held,  that  a  specific  performance  of  the  agreement 
to  give  a  lease  should  be  deci-eetl,  and  they  having  jurisdiction,  the  court  would, 
under  Sir  Hugh  Cairns  act  (21  &  22  Vict.,  Ch.  27,  §  2),  direct  an  inquiry  a.s  to 
the  damages  for  non-performance  of  the  rest  of  the  contract,  to  be  paid  by  the 
defendant.  "  These  matters  are  mere  incidents  of  the  agreement,  not  affecting 
the  substance,"  p.  145,  per  L.  J.  Turner. 

Wilson  V.  West  Hartlepool  R'y  Co.  2  DeG.  J.  &  S.  475.  The  company  agreed 
to  sell  to  i)laintiff  a  piece  of  land.  Contract  provided  that  the  company  should 
lay  down  a  branch  railway  to  the  land,  and  that  plaintiff,  who  was  to  erect  iron 
works  on  the  land,  should  use  the  company's  railway  in  preference  to  any  other.s — 
use  it  whenever  reasonably  practicable,  and  for  the  longest  distance  it  was  rea- 
sonably capable  of  use  ;  company  made  the  branch  ;  plaintiff  took  possession  of 
the  land,  and  his  machinery  was  brought  and  deposited  there.  The  defendant 
then  refused  to  complete.  Held,  affirming  decision  of  the  M.  R.,  that  the  pi"o- 
vision  as  to  plaintiflf 's  use  of  defendant's  road  did  not  prevent  a  specific  perform- 
ance. The  whole  contract  would  be  specifically  performed  ;  that  clause  of  it  by 
inserting  a  proper  covenant  in  the  deed  binding  plaintiff  to  use  the  road  ;  see  per 
L.  J.  Turner,  pp.  494,  495.  In  Li  Hie  v.  Legh,  3  DeG.  &  J.  204,  defendant  had 
agreed  to  lease  a  farm  to  plaintiff,  and  to  furnish  or  pay  for  materials  wherewith 
plaintiff'  was  to  repaii-  and  alter  the  farm  buildings.  Court  decreed  a  specific 
performance  of  the  agreement  to  give  the  lease,  and  held,  that  though  the  claim 
for  materials  was  a  mere  money  demand,  yet  the  court  had  jurisdiction  to  award 
damages  as  an  incident  to  the  general  relief,  p.  208,  per  L.  J.  Knk;ht-Bruck  ; 
p.  210,  per  L.  J.  Turner.  Wilson  v.  Northampton  &  Banbury  Junction  R'y  Co., 
L.  R.  9  Ch.  279.  Defendant  having  bought  of  plaintiff,  agreed  to  erect,  construct, 
and  fit  up  a  station  thereon.  There  was  no  further  description  of  the  station,  nor 
even  any  stipulations  as  to  its  use.  A  specific  pei-formance  of  this  agreement 
was  refused,  on  the  sole  ground  that  it  was  too  indefinite.  Bacon,  V.  C,  said 
that  it  never  had  been  expressly  helil  that  a  contract  to  erect  a  building  will 
never  be  specifically  enforced.  "  I  should  require  very  distinct  authority  before 
I  said  that  the  court  had  no  jurisdiction  to  compel  the  erection  of  buildings." 
p.  281. 

31 


30  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

contract,  a  court  of  equity  will,  if  possible,  decree  a  specific  perform- 
ance by  tlie  defendant  of  his  agreement.  The  relation  of  the  parties 
and  the  situation  of  the  subject-matter  would  render  the  danuiges,  in 
such  a  case,  almost  wholly  conjectural. (1)  4.  i^'inally,  where  Iherc  has 
been  a  part  performance  of  such  a  contract,  so  that  the  defendant  has 
received  and  is  enjoying  the  benefits  of  it  in  specie,  the  court  may 
compel  its  specific  execution,  when,  without  such  part  performance,  it 
might  not  have  interfered,  but  left  the  plaintiff  to  his  legal  remedy. (2) 
It  has  been  recently  held  in  England  that  where  a  private  individual 
is  entitled  to  the  specific  performance  of  a  contract  to  make  certain 
w^orks,  by  a  railway  company,  which  would  require  a  reconstruction 
of  its  track,  the  temporary  interruption  of  its  business,  and  consequent 
inconvenience  to  the  public,  are  not  such  obstacles  as  will  prevent  the 
court  from  granting  the  relief. (;5)     The  cases  on  this  subject  in  the 

(1)  So.  Wales  Ry.  Co.  v.  Wythes,  1  K.  &  J.  200,  per  Page  Wood,  V.  C.  ;  Storer 
V.  Great  Western  Ry.  Co.  2  Y.  &  C,  C.  C.  48  ;  Price  v.  Corporation  of  Penzance, 
4  H|i.  506 ;  Soames  v.  Edg-e,  Johns.  669 ;  Wilson  v.  Furness  Ry.  Co.,  L.  R.  9  Eq. 
28  ;  Hood  v.  North  Eastern  Ry.  Co.,  L.  R.  5  Ch.  525 ;  8  Eq.  666  ;  [Greg-ory  v. 
Ingwersen,  32  N.  J.  Ecj.  199.]  In  1838,  the  company  purchased  land  from 
plaintiff,  and  ag-reed  that  a  part  of  it  should  be  forever  used  as  "a  tirst-class 
station,"  no  other  description  being-  given  in  the  contract.  A  station  was  erected 
in  1842.  and  has  since  been  used.  Plaintitf  tiled  this  bill  to  compel  the  company 
to  build  a  larg-er  station,  alleg-ing-  that  this  one  was  not  "first-class."  Held,  that 
as  the  present  station  was  not  objected  to  when  built,  and  had  remained  as  it  is 
so  many  years,  the  court  would  not  compel  the  company  to  make  a  larg-er  one  ; 
also,  that  the  terms  of  the  contract  were  so  indefinite  that  the  court  could  not 
enforce  it.  Firth  v.  Midland  Ry.  Co.,  L.  R.  20  Eq.  100.  The  company  boug-ht 
land  from  the  owner  and  agreed  to  pay  a  cei'tain  i:)rice  therefoi',  and  to  erect 
certain  bridg-es  thereon  for  his  convenience.  It  took  possession,  made  its  line, 
but  did  not  construct  the  stipulated  works  in  any  manner.  Three  or  four  years 
after  the  parties  made  a  substituted  agreement,  which  became  nug-atory  by  the 
death  of  the  person  who  was  ayjpointed  by  it  to  award  damages,  which  were  to 
be  accepted  l)y  the  plaintiff.  Held,  the  original  contract  w^as  revived,  and  it  was 
enforced  against  the  company.  Green  v.  West  Cheshire  Ry.  Co.,  L.  R.  13  Eq. 
44.  The  company  had  taken  land,  and,  foi-  a  valuable  consideration,  had  agi-eed 
to  construct,  and  forever  maintain,  a  "•side  track"  of  a  specified  lengih,  on  cer- 
tain lands  of  the  vendor  alongside  of  the  main  track,  for  the  vendor's  accommo- 
dation. Held,  that  the  contract  could  be  specifically  enforced,  and  the  court 
would  not  refuse  that  relief,  although  the  plaintifi"  might  have  a  concurrent 
remedy  of  damages,  or  may  have  entered  into  a  negotiation  for  a  money  com- 
pensation, which  had  failed.  [Compare  the  late  American  cases,  Kendall  v.  Frey, 
74  Wis.  26,  and  Texas  &  P.  R.  Co.\\  City  of  ilarshall,  136  U.  S.  393.  in  note  (3), 
p.  31,  infra;  also,  Willard  v.  Ford,  16  Neb.  543;  Robertson  v.  Patterson,  10 
Ont.  R.  2J7  (grantee  covenanted  to  "build  a  house  worth  not  less  than  v'4, 000," 
the  coui-t  holding  that  the  size,  plan,  and  material  were  in  the  discretion  of  the 
grantee) ;  Gregory  v.  Inwersen,  32  N.  J.  Eq.  199  (consideration  of  conveyance, 
that  grantee  should  construct  a  flight  of  stairs  of  specified  dimensions).] 

(2)  Price  v.  Corpn.  of  Penzance,  4  Ha.  506,  509.  Plaintiff  conveyed  land  to 
defendants,  they  covenanting  to  forthwith  make  a  road  and  erect  a  market 
house.  They  took  possession  and  made  the  road,  but  neglected  to  erect  the 
market.  Wigram,  V.  C,  said  that  the  defendants  having  had  the  benefit  of  the 
contract  in  fspecie,  the  court  woulil  go  to  any  length  that  it  could  to  compel  theni 
to  specifically  perform  the  contract  on  theii-  ]iart. 

(3)  Raphael  v.  Thames  Yalloy  Ily.  Co.,  L.  R.  2  Ch.  147,  re\ersing  L.  R.  2  E(i.  37. 

32 


BXTKAT   A.\r>    IJMITATIONS.  31 

Aniericau  courts  are  few,  and  do  not  show  that  they  have  as  y<^t 
adopted  all  of  the  foregoing  distinctions  establishtMJ  l»y  tln^  iiKtiliTii 
English  judges.(l) 

Enforcement  by  injunction. 

8ec.  24.  Another  class  of  contracts  stipulating  for  personal  acts 
are  now  enforced  in  England  by  means  'of  an  injunction.  WIkmc 
one  person  agrees  to  render  personal  services  to  another,  which 
recpiire  and  presuppose  a  special  knowledge,  skill,  and  ability  in 
the  employe,  so  that,  in  case  of  a  default,  the  same  services 
could  not  easily  be  obtained  from  others,  although  the  aliirnia- 
tive  specific  performance  of  the  contract  is  beyond  the  pitwer  of  the 

(1)  Whilo  the  jurisdiction  to  compel  i)erform;ince  of  such  contracts  has  been 
exeiriseil,  it  has  not  been  systematized  and  reduced  to  detinite  rules,  as  in  Kng-- 
laufl.  In  Stuyvesant  v.  Mayor  of  N.  Y.,  11  Paijifn,  414,  an  agi-eeuient  to  ojx-n  a 
drain  thvouu-h  defendant's  laud  was  enforced;  [hut  see  McCarter  v.  Arnistroui,'. 
82  S.  C.  20:»J;  Birchett  v  iioUing-,  5  Munf.  442,  a  contract  to  build  a  tavern,  at  tiie 
join!,  risli  and  expense,  and  for  the  joint  lienetit  of  the  i^arties,  ^vas  enforced  at 
the  suit  of  the  plaintiff",  who  furnished  the  land  on  which  it.  was  to  lie  erected, 
and  had  iierformed  his  part,  the  defendants  objeetiui,'-  on  the  yi-oiuid  that  a  chan^'-e 
in  tlie  circumstances  had  made  the  scheme  unadvisable.  In  Whitney  n.  IS'ew 
Haven,  23  Conn.  (524,  New  Haven  had  ag'reed  to  buy  from  the  i)laintitf  certain 
land,  and  w.atei-  of  ^lill  river  suffictient  to  supply  the  city  with  pure  watei-,  and 
ag-rced  to  pay  .'^oOjOOO,  and  to  erect  a  dam  artd  canal  to  comUict  siiriilusMatei-  for 
plaintiiFs  use.  Specific  performance  was  refused,  on  the  g-i-ound  that  j)laintift 
had  not  part<Hl  with  the  land  and  possessicm,  and  conse(iU(;ntly  had  means  of 
complete  redress  at  law.  [In  Pennsylvania  Co.  v.  St.  Louis,  Alton  &  Terre  Haute 
R.  Co.,  118  U.  S.  290,  it  was  declared  in  the  opinion  of  Mu>leu,  .1.,  that  the 
covenants  of  the  lessee  of  a  railroad  to  pay  rent  and  to  keep  in  repair  could 
be  specilically  enforced;  but  the  case  was  decided  on  another  point.  The 
power  of  a  court  of  etjuity  to  enforce  a  contract  whose  performance  is  continuous 
was  asserted  in  the  i-ecent  important  case  of  Joy  v.  St.  Louis,  13S  U.  S.  1. 
The  Colorado  Railroad  Company  desiriui;-  termiiial  facilities  in  the  City  of  St. 
Louis,  soug-ht  the  benefit  of  an  ag-reement  between  the  Conunissicmers  of  Forest 
Parle,  the  County  railroad  company,  and  another  railroad,  wherein  a  right  of 
way  was  g'ranted  to  the  County  railroad  across  the  park,  and  it  was  stipulated 
amonjj;-  other  thing-s  (p.  8,  9 ) :  "Ninth.  Said  ])arty  of  the  second  part,  [the 
Coimty  i-ailroadj  shall  i)ermit,  under  such  reasonal)I(!  reg-ulations  ainl  terms,  as 
may  be  ag'i-eed  upon,  other  railroads  to  use  its  right  of  way  through  the  jiark 
and  up  to  the;  terminus  of  its  road  in  the  city  of  St.  Louis,  u])on  .>-U'.  h  terms  and 
for  such  fair  and  e(pntal)le  compensation  to  be  paid  to  it  therefor,  as  may  be 
agreed  upon  l)y  such  companies."  The  decree  of  \\w  Circuit  Court,  i>er  BinowEU, 
J.,  which  was  affirmed,  made  it  the  duty  of  the  Wal)ash  company,  the  successor 
to  the  Coimty  i-ailroad  (ji.  17),  to  maintain  the  rig-ht  of  way  and  tracks  thereon 
and  other  terminal  facilities  in  g-ood  repair  ;  and  i-endered  the  rules  and  i-egnla- 
tions  of  the  Wal)a.-^h  Company  xmder  which  the  trains  of  the  (intervenor)coni})any 
should  be  run,  .sul)ject  to  tin;  further  order  of  the  court,  and  enjoined  theWabash 
Company  from  refusing-  to  jiermit  the  intervener  from  using  the  right  of  way, 
subject  to  such  reg-ulations.  TheSupi-eme  Court,  speaking  thrt)ug-h  BLATriiFoiti), 
.].,  i-ested  its  decision  (so. far  as  it  concerns  the  present  suliject),  en  the  following- 
grounds  (p.  46) ;  "The  right  to  use  the  right  of  way  i.s  a  continuing  right.  If 
the  remedy  were  to  be  at  law,  repeated  actions  for  damages  would  lie  necessary. 
The  remedy  at  law  would  be  wholly  iiuidecpiate.  It  would  be  neither  plain  nor 
complete,  noi-  would  it  be  a  reasonabh;  substitute  for  the  remedy  in  eijuity  by 
the  injunction  asked  for."  (P.  47.)  "  In  the  present  ciuse.  it  is  urgeil  that  the  court 
will  be  called  uiion  to  determine  from  time  to  time  what  are  reasonalde  i-egul;i- 
tions  to  1)0  made;  liy  the  Wabash  C<imi)any,  for  the  running  of  trains  ujion  its 
ti-acks  l)y  i\w.  Colorado  Company.  But  this  is  no  more  than  a  court  of  ecpiity  is 
<-.alled   up(m  to  do  whenever  it  takes  chai-ge  of  the  running  of  a  railroad  tiy 

33 


EXTENT  AND   LIMITATIONS.  31 

court,  its  performance  will  be  negatively  enforced  by  enjoining  its 
breach.  This  doctrine  applies  especially  to  contracts  made  by  actors, 
public  singers,  artists  and  others  possessing  a  special  skill  and  ability. 
It  is  })lain  that  the  principle  on  which  it  rests  is  the  same  with  that 
which  ap})lies  to  agreements  for  the  purchase  of  land  or  of  chattels 
having  a  unicpie  character  and  value.  The  damages  for  the  breach  of 
such  contracts  cannot  be  estimated  with  any  certainty,  and  the 
employer  cannot,  by  means  of  any  damages,  purchase  the  same 
services  in  the  labor  market.  In  the  leading  case,  which  first  estab- 
lished this  doctrine,  an  artist  agreed  to  sing  at  the  plaintiff's  theatre, 
and  not  to  sing  at  any  other  during  the  term  of  the  engagement.  The 
court,  conceding  that  it  could  not  enforce  the  affirmative  stipulation, 

means  of  a  receiver.  Iri-e-spectively  of  this,  the  decree  is  complete  in  itself  and 
disposes  of  tlie  controversy  ;  and  it  is  not  unusual  for  a  court  of  e(iuity  to  take 
supplemental  proceeding-s  to  carry  out  its  deci-ee  and  make  it  effective  under 
altered  circumstances."  (P.  .50.)  "Railroads  are  common  carriers  and  owe 
duties  to  the  pul)lic.  The  rights  of  the  public  in  respect  to  these  great  highways 
of  communication  should  be  fostered  by  the  courts ;  and  it  is  one  of  the  most 
useful  functions  of  a  court  of  equity,  that  its  methods  of  pi-ocedure  are  cajjable 
of  being  made  such  as  to  accommodate  themselves  to  the  develojiment  of  the 
interests  of  the  public,  in  the  progress  of  trade  and  trafhc,  by  new  methods  of 
intercourse  and  transi^ortation.  The  present  case  is  a  striking  illustration. 
Here  is  a  great  public  pai-k,  one  of  the  lungs  of  an  important  city,  which,  in 
order  to  maintain  its  usefulness  as  a  park,  must  be  as  free  as  possible  from  being 
serrated  by  railroads  ;  and  yet  the  interests  of  the  public  demand  that  it  shall 
be  crossed  by  a  railroad.  But  the  evil  consequences  of  such  crossing  are  to  be 
reduced  to  a  nunimum  by  having  a  single  right  of  way,  and  a  single  set  of  tracks, 
to  be  used  by  all  the  railroads  which  desire  to  cross  the  park.  These  two 
antagonisms  must  be  reconciled,  and  that  can  be  done  only  by  the  interposition 
of  a  court  of  equity,  which  thus  will  be  exercising  one  of  its  most  beneticient 
functions."  In  regard  to  the  duty  of  the  Wabash  Company  to  rejjair,  it  may  be 
that  the  i^rinciple  of  the  cases  of  the  second  class  mentioned  in  the  text  would 
control,  as  the  work  to  be  done  by  the  company  was  upon  its  own  property.  The 
decision  in  Joy  v.  St.  Louis,  was  closely  followed  by  the  case  of  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Union  Pacific  R.  Co.,  47  Fed.  Rep.  15.  The  bill  was  brought  to  enforce 
sjiecific  performance  of  a  contract,  whereby  the  defendant  company  let  the 
plaintiff  company  into  joint  possession  of  jiortions  of  its  line  for  999  years,  at  an 
agreed  rental.  The  element  of  public  interest,  which  was  one  of  the  grounds 
on  which  the  decision  in  Jay  v.  St.  Louis  was  placed,  was  found  by  the  Circuit 
Court  (Brewer,  J.),  in  the  saving  of  capital  to  the  amount  of  two  or  thi-ee 
millions,  which  would  necessarily  be  expended  in  the  building  of  a  road  paral- 
leling the  defendant's  lines,  to  say  nothing  of  the  destruction  of  a  lai-ge  amount 
of  property  involved  in  such  unnecessary  work.  (P.  27.)  "  Such  an  expenditure 
of  money  places  an  additional  burden  upon  the  pul)lic.  Every  unnecessary 
mile  of  railroad  track  or  of  bridge  that  is  built  adds  to  the  cost  of  transportation, 
and  surely  the  pul)lic  is  interested  in  seeing  that  that  cost  be  as  light  as  possible." 
This  is  undoubtedly  sound  political  economy,  but  it  may  be  questioned  whether  it 
is  not  a  novel  ground  for  the  interposition  of  a  court  of  eqiiity,  with  its  remedy 
of  specific  performance.  See  also,  Louisville  &  N.  R.  Co.  v.  M.  &  T.  R.  Co. 
(Tenn.),  22  S.  W.  920,  June  IB,  3893 ;  Prospect  Park,  etc.,  R.  Co.  v.  Coney  Island, 
etc.,  R.  Co.  (N.  Y.),  39  N.  E.  17  (Dec.  11,  '94);  South  &  North  Ala.  Ry.  Co.  v. 
H.  A.  &  B.  Ry.  Co.,  98  Ala.  400.  The  same  ground  of  public  policy  or  perhaps, 
the  absence  of  it  to  support  the  ijlaintiff 's  case,  was  taken  as  a  reason  for  refus- 
ing specific  i^erformance  in  the  case  of  Texas  &  P.  R.  Co.  v.  City  of  Marshall, 
13(5  U.  S.  393.  In  consideration  of  the  donation  of  three  hundred  thousand 
dollars  and  sixty-six  acres  of  land  by  the  City  of  Marshall  to  the  Texa.s  and 

34 


EXTENT  AND   LIMITATIONS.  31 

granted  an  injunction  rer^trainiug'  th»^  dofontlant  from  singing  elsewhere 
than  at  the  phiintirt's opera  house. (2)  Tht;  rule  lias  since  been  exteuded 
to  cases  in  which  the  contract  contained  no  negative  stipuhition,  and  it  is 
now  settled  that  such  a  negative  clause  is  not  a  necessary  prere(iuisite 
to  the  exercise  of  the  jurisdiction. (3)  [Tlu?  rule  has  recently  been  limi- 
ted, in  England,  to  contracts  containing  express  negative  clauses. (4)J 

Pacific  Company,  tlic  latter  agrbcd  to  "  porinaiicutly  establish  its  eastern  terminus 
and  Texius  ottice  at  the  city  of  Mai'shall,"  and  to  "  establish  and  construct  at  said 
city,  the  main  machine  shojis  and  cai'  works  of  said  railway  company."  The 
company  fulfilled  its  ag-reement  for  about  eijji-ht  years,  but  since  that  time  moved 
parts  of  its  machine  shops  and  its  Texa«  otiice  to  other  cities,  and  l)y  various 
chan<i;:es  caused  tlie  city  of  Marshall  to  cease  to  be  the  terminus  of  the  road.  The 
court  held,  per  Millkk,  J.  (Bhkwkk,  J.,  dissenting-),  that  the  word  "i)crmanent" 
in  the  contract  was  to  be  construed  with  referen(;e  to  the  sul)ject-matt(>r  of  the 
contract,  and  that,  under  the  circumstances  of  the  case,  it  was  comidied  with  by 
the  establishment  of  the  terminus  and  the  offices  and  shops  contracted  for,  with 
no  intention  at  the  time  of  removing-  or  abandoning-  them  ;  but  it  also  said  (p.  405, 
Brewer,  J.,  dissenting-),  "if  the  city  of  Marshall  has  under  such  a  contra(;t  a 
]-emedy  for  its  violation,  it  is  much  more  consonant  to  justice  that  the  injury 
suffered  by  the  city  should  be  compensated  by  a  single  judg-ment  in  an  action  at 
law,  and  the  railroad  placed  at  liberty  to  follow  the  course  which  its  best  interests 
and  those  of  the  puljlic  demand.  Nor  do  we  see  any  substantial  ditKculty  in 
ascertaining  this  compensation.  On  the  other  hand,  the  enforcement  of  the 
contract  by  a  decree  of  the  coui-t,  requii-ing  the  company  to  restore  in  all  its 
fullness  the  ofKces,  the  workshops,  and  whatever  has  been  removed  from  the 
city  of  Marshall,  and  the  continued  and  pei-petual  compliance  with  all  those 
conditions  by  the  company,  to  be  enforced  in  the  future  under  the  eye  of  a  Court 
of  Chancery,  against  the  public  interest,  and  ])erhaps,  manifestly  to  the  pi'cjudice 
and  injury  of  the  railroad  company,  exercising  to  some  extent  the  public  function 
authorized  by  tlie  acts  of  Congress  or  of  the  Legislatui-e  of  Texas,  ]U'esents 
difficulties  fai-  more  formidable  than  the  action  at  law."  Stress  was  laid  on  the 
difticulty  of  enforcing  a  decree  ;  and  Marble  Co.  v.  Ripley,  was  quoted.  It  may 
be  noticed  that  the  execution  of  the  decree  in  this  case  would  demand  of  the 
coui-t  a  far  greater  labor  of  supervision,  than  in  the  cases  of  Joy  v.  St.  Louis,  and 
Chicago,  R.  I.  &  P.  R.  v.  Union  Pac.  R.  See  also,  Kendall  i\  Frey,  74  Wis.  26, 
where  specific  performance  was  sought  of  a  contract  made  witli  the  ])]aintiff  by 
the  common  council  of  a  city  to  erect  a  city  hall  on  land  conveyed  to  the  city  by 
him  for  that  purpose.  The  court  refused  a  deci-ee,  jiarfly  on  the  groimd  that 
protracted  supervision  of  its  execution  woidd  lie  required,  Imt  cliictiy  on  the 
ground  of  its  reluctance  to  interfere  with  the  discretiou  of  the  common  council 
in  a  matter  in  which  the  piiblic  intei-ests  were  concerned.  The  court  say  : 
"How  and  where  a  public  building  shall  be  erected  is  necessarily  a  (luestion  of 
public  policy,  and  involves  a  variety  of  considerations.  The  common  council  is 
vested  by  law  witli  full  authoi'ity  to  decide  them.  The  court  cannot  wisely 
review  their  action  on  such  a  suf)ject."] 

(2)  Lumlev  v.  Wagner,  1  Ue  G.,  M.  &  G.  604,  per  Lord  St.  Leonakds.  See 
Fechter  v.  Montgomery,  33  Beav.  22 ;  Catt  v.  Tourle,  L.  R.  4  Ch.  Cr)4 ;  [McCaull 
V.  Braham,  16  Fed.  Rep.  37,  and  note ;  Daly  v.  Smith,  49  How.  Pr.  l.")0,  and 
cases  cited;  Chicago  &  A.  R.  R.  Co.  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  24  Fed. 
Rep.  516]. 

(3)  Webster  V.  Dillon,  3  Jur.  (N.  S.)  432;  Montague  v.  Flockton,  L.  R.  16  E(i. 
189.  [See  also,  to  the  same  effect,  Cort  v.  Lassard,  18  Oreg.  221 ;  30  Central  L. 
J.  229.] 

(4)  [Whitwood  Chemical  Co.  v.  Hardman  [1891],  2  Ch.  416,  disappi-oving 
Montague  v.  Flockton.  And  where  the  clause,  though  negative  in  form,  is 
really  affirmative  in  substanc(>,  the  pa)-ty  seeking  to  enforce  it  will  l)e  left  to  his 
legal  remedy  ;  Davis  v.  Foreman  [1894],  3  Ch.  654.  In  this  case  an  agi-eement 
for  the  employment  of  a  manager  of  a  business  contained  a  clause  jjroviding  that 
the  employer  would  not,  ex<',ept  in  the  case  of  misconduct  or  a  breach  of  the 
agi-eement,  requii-e  the  managei*  to  leave  his  employ.  This  clause  was  held  to 
be  ecjuivalent  to  a  stipulation  by  the  employei-  that  lu^  would  retain  th(>  manager 
in  his  employ,  and  an  injunction  restraining  its  breach  was  therefore  refused.] 

35 


32  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

The  American  courts,  wliich  exhibit  a  strange  disinclination  to  apply 
the  preventive  remedy  of  injunction  to  any  enlarged  uses,  have  not 
hitherto  followed  these  modern  English  authorities,  and  refuse  to 
enforce  the  performance  of  such  personal  contracts,  either  negatively 
or  afl[irmatively.(l) 

Hec.  25.  The  doctrine  of  specifically  enforcing  negative  contracts 
by  injunction  is  well  established  in  England,  and  has  been  partially 
adopted  by  the  courts  of  this  country.  An  agreement  that  the  party 
will  not  do  certain  specified  acts — especially  if  these  prohibited  acts 
relate  to,  or  interfere  with,  property  rights  or  business  interests  of  the 
obligee — will  be  specifically  enforced  in  a  negative  manner  by  enjoin- 
ing a  commission  of  the  acts,  whenever  damages  would  be  inadequate, 
or  the  basis  for  their  computation  would  be  wholly  speculative,  con- 
jectural, or  uncertain.  The  rule  has  been  applied  in  the  following 
instances,  among  others,  in  which  the  parties  have  been  restrained 
from  doing  the  acts  described  contrary  to  their  stipulations.  An 
agreement  not  to  ring  a  bell; (2)  an  agreement  not  to  carry  on  a 
trade  ;(3)  or,  not  to  carry  on  a  certain  trade  in  a  place  or  district 
specified  ;(4)  an  agreement  not  to  erect  buildings  ;(5)  or,  not  to 
erect  buildings  above  a  certain  height  ;(6)  an  agreement  not 
to  make  application  to  Parliament  for  or  against  some  private 
bill  ;(7)  an   agreement  by  a  railway  company  not  to  run  any  of  its 

(L)  Sanqiiirico  v.  Bennedetti,  1  Barh.  315;  Hamblin  v.  Dinneford,  2  Edw.  Ch. 
r)2v) ;  De  Rivafinoli  v.  Coi-setti,  4  Paige,  270 ;  De  Pol  v.  Sohlke,  7  Roberts,  280. 
But  see  Hayes  v.  Willio,  11  Abb.  Pi-.  (N.  S.')  167  ;  McClurg's  Appeal,  58  Pa.  St. 
51 ;  Bi-own's  Appeal,  62  Pa.  St.  17  ;  Machette  v.  Hodges,  6  Phila.  296 ;  Gillis  v. 
Hall,  2  Brews.  342 ;  [Western  U.  Tel.  Co.  v.  Union  Pac.  Ry.  1  McCrary,  ;"5S  ;  3 
Ved.  Rep.  423;  Western  U.  Tel.  Co.  v.  St.  Jo.,  etc..  Ry.  1  McCrary,  565  ;  3  Fed. 
Rep.  430;  Metropolitan  Exhibition  Co  v.  Ewing,  42  Fed.  Reji.  198;  and  Ameri- 
can cases  cited  in  last  two  notes.  The  moi-e  i-ecent  American  cases  are  in  general 
accord  with  the  English  rule.  See  Equitable  Gas-Light  Co.  v.  Coal-Tar  Co.  63 
Md.  285  ;  Chicago  &  A.  R.  R.  Co.  v.  N.Y.,  L.  E.  &  W.  R.  R.  Co.  24  Fed.  Rep.  516.] 

(2)  Martin  v.  Nutkin,  2  P.  Wms.  266. 
■  (3)  Barret  v.  Blagrave,  5  Yes.  555 ;  6  Ves.  104 ;  Williams  v.  Williams,  2  Sw. 
253;  3  Mer.  157;  Shackle  v.  Baker,  14  Ves.  468;  Cruttwell  v.  Lye,  17  Ves.  335; 
Newberj-y  V.  Janie.>,  2  Mer.  446 ;  Harrison  v.  Gardner,  2  Sladd.  198.  [On  the 
subject  of  contracts  in  resti-aint  of  trade,  see  Diamond  Match  Co.  v.  Roeber,  106 
N.  Y.  473 ;  Barnes  v.  Geary,  35  Ch.  D.  154 ;  Ropes  v.  Upton,  125  Mass.  258.] 

(4)  Clements  v.  Welles,  L.  R.  1  Eq.  200;  Clarkson  v.  Edge,  12  W.  R.  (M.  R.) 
518  ;  Fielden  v  Slater,  L.  R.  7  Eq.  523 ;  Jones  v.  Bone,  L.  R.  9  Eq.  674  ;  Carter 
V.  Williams,  L.  R.  9  Eq.  678.  Even  when  the  party  was  an  infant,  if  he  had 
represented  himself  as  adult.  Cornwall  v.  Hawkins,  41  L.  J.  (N.  S.)  435;  Jones 
V.  Haven.s,  L.  R.  4  Ch.  D.  636;  Catt  v.  Tourle,  L.  R.  4  Ch.  654.  Covenant  by 
purchaser  that  vendor,  a  brewer,  his  heirs  and  assigns,  should  have  the 
exclusive  i-ight  of  sujiplying  beer  to  any  public  house  erected  or  opened  on  the 
land,  enforced. 

(5)  Rankin  v.  Huskisson,  4  Sim.  13. 

(6)  Lloyd  V.  London,  Chatham  &  D.  Ry.  Co.  2  De  G.,  J.  &  S.  568;  Bowes  v. 
Law,  L.  R.  9  Eq.  636. 

(7)  Ware  v.  Grand  Junction  Waterworks  Co.  2  R.  &  My.  470,  483;  Heathcote 
V.  North  Staffordishire  Ry.  Co.  2  Mac.  &  G.  100  ;  Lancaster,  etc.,  Ry.  Co.  v.  Nortk 
Western  Ry.  Co.  2  K.  &  J.  293 ;  and  see  Taylor  v.  Davis,  3  Beav.  388,  note. 

36 


EXTEyT  AM)    LIMITATIONS.  3:} 

ordinary  or  fast  trains — other  thaii  mail,  ex[)ress,  or  special  trains 
— past  a  certain  station  without  stopping,''  for  passon^^'-ers  to  get 
on  or  to  alig-lit  ;(1)  an  ag-reonient  in  a  separation  deed  between  1ms- 
band  and  wife  that  the  children  should  attend  .such  .schools  as  their 
father  sliould  choose,  and  should  spend  their  holidays  wliere  the 
trustees  should  direct,  the  trustees  directing  that  tliey  should  spend 
one-half  of  the  holidays  with  their  father  and  the  rest  with  their 
mother  ;(2)  and   to   restrain  an  infringement    of   a  charter-party. (3) 

(1)  Hood  ('.  North  Ivistei'ii  R'y  Co.,  L.  R.  8  K(i.  (ICt; ;  ">  Cli.  '^'i:) ;  Kif,'-l>v  ''■  (ircat 
Western  R'y  Co.,  2  Ph.  44;  If)  L.  J.  (N.  S.)  2G0  ;  Phillip.s  v.  (Jrcat  Western  R'y 
Co.,  L.  R.  7  Ch.  40!)  ;  20  W.  R.  5(52;  [Lawrence  v.  Saratoga  Lak(!  R.  R.  Co.,  30 
Hun,  407]. 

(2)  Hamilton  v.  Hector,  L.  R.  0  Ch.  701.  The  Im.sband  refusing-  to  allow  the 
children  to  visit  the  mother,  and  taking  thorn  to  hi.s  own  house  entirely,  he  was 
restrained  from  interfering'  with  their  passing  such  time  with  the  mother  as  the 
trustees  should  direct.  While  the  father  coulil  not,  by  agreement,  deprive  himself 
of  all  control  over  his  children,  this  hargiiin  was  reasonalile  and  .should  l)e 
enforced.  The  following  are  some  recent  American  cases  ujxm  the  <loct]-ine  dis- 
cussed in  the  text.     The  conti-act  has  been  enfoi-ccd  by  injunction  in  Giliis  v.  I  !all, 

2  Brews.  (Pa.)  342  (a  negative  covenant)  ;  Manhattan  Manid'.,  etc.,  Co.  v.  New 
Jersey  Stock,  etc.  Co.,  23  N.  J.  E(i.  101;  Manhattan,  etc.  Co.  v.  Van  Keuren,  ib. 
251 ;  Haskell  v.  Wright,  ib.  389  ;  Parker  v.  Gari-ison,  01  111.  250  (a  contract  to  sell 
personal  projierty,  enforced  by  injunction  under  special  circumstances)  ;  Bei'ger 
V.  Armstrong,  41  Iowa,  447,  and  Spicer  v.  Hoop,  51  Ind.  30.")  (both  of  these  cases 
were  of  contracts  not  to  engage  in  a  trade)  ;  Richardson  v.  Peacock,  C6  N.  J.  Etj. 
40,  and  see  Harkinson's  Apjieal,  78  Pa.  8t.  190  (contracts  not  to  engage  in  trade) ; 
Frank  v.  Brunneman.  8  W.  Va.  402  (a  lessee  restrained  from  bi-eaking  covenants 
of  his  lease)  ;  [W^'iti-ous  v.  Allen,  57  Mich.  302  (injunction  against  grantee  of 
premises  to  enforce  condition  that  he  should  not  sell  intoxicating  li(]uors  thereon, 
although  forfeiture  v/as  pre -icribed  for  the  breach)] ;  and  see  Agate  v.  Lowen- 
bein,  4  Daly,  02;  Singer's  Manuf.  Co.  v.  Union  Buttonhole,  etc.  Co.,  0  Fisher's 
Pat.  Cas.  480 ;  [Brush-Swan  Electric  L.  Co.  of  New  England  v.  Brush  El. 
Co.,  41  Fed.  Rep.,  103,  109  (stipulation  not  to  sell  a  patented  article  within 
a  certain  district)  ;  Slomon  v.  Hertz,  43  N.  J.  Va\.  4'JO  (conti-act  not  to  dis- 
close trade  secrets)].  In  McArthiu-  v.  Ashmead,  2  Ih-ew.-:.  533,  tlie  vemlee  in 
a  land  contract  was  enjoined  in  aid  of  the  vendor's  right  to  a  s])ecitic  ]ier- 
formance ;  Barnes  v.  Barnes,  05  N.  C.  201  ;  Steward  v.  Winter,  4  Sandf.  Ch.  587. 
[Boardnian  v.  Lake  Shore,  etc.  R.  Co.,  84  N.  Y.  157  (si)ecilic  performance 
of  an  obligation  of  a  company  to  pay  dividends  on  jn-eferred  stock  aided  by 
an  injunction  prohibiting  the  company  fi-om  declaring  dividends  on  common 
stock)  ;  Chicago  &;  A.  Ry.  Co.  v.  N.  Y.',  L.  V..  k.  W.  R.  Co.  (agreement  among 
railroad  companies  to  estalilish  a  dispatch  freight  line  for  their  mutual  lienetit 
and  profit,  enforced  by  enjoining  a  breach  thereof).]  In  thi;  following  cases  an 
injimction  was  refused  ;  the  j-efiisal,  however,  being  based  ui)on  the  natui-e  of 
the  contract  as  not  being  one  which  ecpiity  coidd  eufqi-ce  at  all,  or  upon  the 
circumstances  of  the  case,  and  not  ujion  the  absence  of  i)ower  to  enforce  by 
injunction.  In  Caswell  v.  Gibbs,  33  Mich.  331,  an  agreenuAit  "never  to  tow 
vessels  in  competition  with  "  plaintiff,  was  very  jn-operly  held  not  to  be  enforce- 
able by  injunction  (1),  because  it  was  too  uncertain  and  indefinite,  and  (2), 
because  every  case  of  allegiMl  breach  wotdd  reipiire  a  sepai-at(^  in\'estigation  of 
fact,  in  order  to  ascei-tain  whether  theri»  had  been  an  actual  ^•iolation.  In  Ilahn 
V.  Concordia  Soc,  4J  Md.  400,  a  conti-a<-t  was  secured  by  what  the  court  decided 
to  be  a  stipulation  for  liipiidatcid  damag<!s,  and  not  a  i)enalty.  Held,  therefore, 
that  the  court  would  not  enfoi'ce  by  injunction,  but  would  leave  the  plaintiff  to 
his  action  for  the  damages.  Hile*  f.  Davison,  20  N.  J.  Va\.  228.  Hdd,  that, 
imder  the  facts,  the  vendor  in  a  land  contract  should  not  be  enjoined  from 
collecting  the  securities  given  him  for  th(^  ]irice.  See,  also,  (iregg  v.  Landis,  21 
N.  J.  Eq.  494.  [For  t'urthei-  illustrations,  see  Joy  r.  St.  Louis,  138  U.  S.  1,  ante, 
p.  31,  n.,  and  cas(!S  cited  in  3  Pom.  ]\i\.  Jur.,  §  1344,  notes.] 

(3)  De  Mattos  v.  Gib.son,  4  De  (i.  &  J.  270;  Seawell  v.  Webstei-.  7  W.  R.  09]  ; 
Messageries  Imperiales  Co.  v.  Baines,  11  W.  R.  322  ;  Jervin  v.  Deshandes,  L.  R. 

3  Ch.  457. 

37 


34  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

But  the  court  will  not  interfere  to  restrain  the  breacli  of  such  a  stipu- 
lation where  it  is  merely  ancillary  to  a  more  general  contract,  which 
cannot  be  specifically  enforced  in  its  entirety. (1) 

Inadequacy  of  damages,  nature  of. 

Sec.  26.  The  foregoing  examples,  selected  from  various  classes  of 
contracts,  alrliough  by  no  means  exhaustive,  sufficiently  illustrate 
the  nature  and  use  of  the  equitable  remedy  of  specific  perform- 
ance considered  as  a  means  of  supplementing  the  inadequate  legal 
relief  of  damages.  Before  proceeding  to  consider  the  second  basis 
of  the  jurisdiction,  I  shall  attempt  to  ascertain  and  state  the  exact 
import  of  this  inadequacy,  and  the  conditions  under  which  it  exists, 
so  that  the  equitable  remedy  becomes  admissible.  Sir  John  Leach 
once,  in  decreeing  a  specific  performance,  gave  the  reasons  for  his 
decision  in  the  following  language  :  "  Because  a  court  of  law  could 
not  give  the  property,  but  could  only  give  a  I'emedy  in  damages, 
the  heneficial  effect  of  which  must  depend  upon  the  personal  responsi- 
hiliti/  of  the  party '\'2)  If  this  dictum  were  a  correct  statement  of 
the  princi[)les  upon  which  the  courts  of  equity  proceed,  it  is  plain 
not  only  that  the  remedy  would  at  times  be  extended  to  every 
species  of  contract,  but  also  that  it  would  never  be  extended  to 
all  contracts  of  any  particular  class;  in  other  words,  its  use  w^ould 
depend  not  upon  the  nature  and  terms  of  the  contract  sought  to  be 
enforced,  but  upon  the  pecuniary  condition  of  the  party,  his  ability 
to  pay  the  judgment  of  damages  which  might  be  recovered  against 
him.  There  are  expressions  scattered  through  the  judicial  opin- 
ions— 5-uch  as  "  the  right  to  obtain  a  specific  performance  is  not  abso- 
lute, but  depends  itpon  the  circumstances  of  each  particular  case,'"  which 
must  be  carefully  restricted  to  their  exact  connections  and  mean- 
ing, or  else  they  will  be  very  misleading.  These  general  expressions 
describing  the  effect  of  circumstances,  etc.,  have  no  relation  whatever 
to  the  adequacy  of  damages  as  a  compensation,  but  refer  exclusively 
to  those  surrounding  facts  and  incidents  wliich  influence  and  guide 
the  judicial  discretion  to  decree  or  not  the  specific  performance  of  a 

(1)  Merchants'  Trading-  Co.  v.  Banner,  L.  R.  12  En.  18,  per  Lord  Romilly,  M.  R., 
who  said  :  "The  real  principle  is,  that  where  the  stipulation  sought  to  he  enforcetl 
is  i-eally  a  part  of  the'  contract  itself,  this  court  cannot  specitically  perform  the 
conti-act  jiiece-iueal,  but  it  must  be  performed  in  its  entirety,  if  performe<l  at  all ; 
and  when  the  court  cannot  perform  it  in  its  entirety,  neither  can  it  perform  any 
particular  ])oi'tion  of  it."  [Railroad  Co.  v.  Teleg-raph  Co.  38  Ohio  tst.  24.  8ee, 
however,  Brush-Swan  Electric  L.  Co.  of  New  Eng-lund  v.  Brush  Electric  Co.  41 
Fed.  Rep.  1G3,  1G9,  where  a  specific  performance  of  an  ag-reement  giving-  c-om- 
plainant  a  license  and  exclusive  agency  for  the  sale  of  a  jjatented  article  within 
a  certain  terj-itory  could  not  be  enforced,  but  a  stipulation  of  the  contract,  pro- 
hibiting the  defendant  from  selling  in  the  district  specified,  was  enforced  by 
injunction  and  an  accounting.] 

(2)  In  Doloret  v.  Rothschild,  1  S,  &  R.  .')90.  In  a  few  early  American  cases, 
also,  the  insolvency  of  the  defendant  is  stated  as  a  partial  reason  ;  at  least,  as  a 
make-weight  for  granting  the  relief.  [See,  also,  dicfa  in  Rothholz  v.  Schwai-tz, 
46  N.  .J.  Eq.  477 ;  Pennsylvania  Co.  v.  St.  Louis.  Alton  &  Terre  Haute  R.  Co. 
118  U  S.  290,  305  ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Union  Pac.  R.  Co.  47  Fed.  Rep. 
15,  29;  Collins  v.  Haratopsky,  36  Ark.  316  ;  Knott  v.  Manuf.  Co.  30  W.  Va.  790.] 

38 


4 


EXTENT  AND  LIMITATIONS.  35 

contract  wliicli  it  is  assumed  might,  under  the  proper  conditions,  be 
so  couferred.(l) 

(1)  Certain  observations  of  Beck,  C.  J.,  in  the  recent  case  of  Ri(hinon(\  y. 
Dubuque,  etc.,  R.  R.,  33  Iowa,  423,  480,  might  seem,  on  a  superficial  reading,  to 
be  diametrically  opposed  to  these  statements  of  the  text.  As  the  case  is  an  inter. 
esting  one,  and  received  very  cai-efnl  consideration  from  the  counsel  and  the 
court,  I  shall  quote  from  it  at.  some  length.  The  contract  was  very  sjiecial.  It 
contained,  in  .'^nbstance,  the  following  jirovisions  :  1.  The  defendants —  the  rail- 
road company  —  leased  cei-tain  land  to  plaintiffs  for  fifteen  years,  with  th(j  t)j)tion 
of  extending  the  term  fifteen  years  more.  2.  Plaintiffs  agreed  to  erect  and  main- 
tain on  said  land  an  elevator  of  sufiicient  capacity  to  handle  all  the  grain  received 
by  defendants'  road,  and  to  inci-ease  the  capacity  if  ne(!essai'y.  3.  Defendants 
agi-eed  not  to  erect  any  similar  structure,  nor  to  lease  any  other  land  at  the  place 
for  that  puiiiose.  4.  Defendants  agreed  that  plaintiffs  shall  have  the  handling  of 
all  through  grain  transported  on  their  road,  and  to  pay  a  specifieci  compensation 
per  buthel  for  handling  and  storing  the  grain  delivei-ed  by  them  at  said  elevator. 
5.  Defendants  agreed  at  the  expiration  of  the  term  to  pay  to  the  jilaintiffs  the 
appraised  price  of  the  building.  Defendants  broke  the  agreement  by  refusing  to 
deliver  the  "through  gi-ain"  at  the  plaintiffs'  elevator,  which  had  been  erected, 
etc.,  and,  of  course,  refusing  to  pay  any  compensation.  The  plaintiffs  brought 
this  action,  praying  that  defendants'  agreement  might  be  specifically  enfoi-ced,  or 
that  damages  might  be  awarded  for  its  breach.  The  court  held,  that  the  actual 
damages  sustained  by  the  plaintiffs  could  be  ascertained  with  sufficient  exactness 
and  certainty,  and  that  such  damages  constituted  an  adequate  compensation,  and 
that,  therefore,  a  specific  performance  would  not  be  decreed.  No  allusion  is  made 
in  the  ojiinion  to  the  impossibility  of  specifically  enforcing  the  contract,  even  if 
damages  are  conceded  to  be  inadequate,  although  that  question  was  exhaustively 
discussed  by  the  covuisel.  In  the  introductory  part  of  the  opinion  by  Beck,  Ch. 
J.,  the  following  passage  occurs,  which  contains  the  language  referred  to  at  the 
commencement  of  this  note  (p.  480)  :  "It  is  impossible  to  state  a  general  rule 
as  to  the  power  of  equity  to  enfoi-ce  a  specific  performance  of  contracts  respecting 
personal  property,  choses  in  action  and  personal  services.  It  is  often  said  that  in 
such  cases  equity  will  not  entertain  jurisdiction.  But  this  doctrine  is  subject  to 
an  exception,  or  is,  rather,  limited  in  its  application  to  cases  where  compensation 
in  damages  does  not  furnish  a  complete  and  satisfactory  i-emedy.  The  rule  is 
stated,  in  other  words,  viz.,  when  the  contracting  party  is  entitled  to  the  subject- 
matter  of  the  contract,  and  cannot  be  fully  compensated  therefoi",  equity  will  afford 
relief.  And  it  is  often  expressed,  in  another  form,  as  follows :  Etjuity  will  not 
interfere  when  the  injured  party  has  an  adequate  i-eniedy  at  law.  Now,  in  the 
application  of  the  rule,  as  it  is  vai'iously  announced,  the  important  inqdiry  always 
is  :  What  constitutes  a  complete  and  adequate  remedy,  and  when  would  this  be 
afforded  by  the  allowance  of  damages  1  It  is  sometimes  said  that  equity  will  not 
interfere  because  the  law  will  award  damages ;  and  in  other  cases  that  equity 
will  interfere  in  cases  when  the  law  will  give  damages,  on  the  ground  that  the 
party  is  not  fully  compensated  thei-eby.  The  fact  that  a  court  of  law  will  awai-d 
damages  in  a  given  case  does  not  deprive  Cfjuity  of  jurisdi(;tion.  To  deju-ive  the 
party  of  an  equitalile  remedy,  the  damages  recoverable  at  law  must  be  a  full 
compensation  and  constitute  ade(iuate  relief.  Equity  determines  this  question 
We  must  apply  its  doctrines,  in  order  to  pronounce  the  relief  ade<iiiat(^  or  iinide- 
quate.  15ut  here  we  find  no  fixed  rule  to  guide  us  other  than  th'ts  one,  which  is 
general  in  its  language  and  aiiplication  :  the  remedy  sought  must  be  indispenS' 

39 


36  SPECIFIC  PERFORMAyCE   OF   CONTRACTS. 

Sec.  27.  In  fact,  the  adequacy  or  inadequacy  of  damages,    as   a 
remedy,  is  not  determined  by  the  relations  of  tlie  parties  and  terms  of 

able  to  justice.  But  natural  justice  is  not  meant,  for  upon  its  pi-iuciples  it  would 
appear  that  all  nieu  should  be  required  to  specitically  i)erforni  thoir  contracts. 
The  conclusion  i.s  i-eached  that  the  rules  are  so  general  in  their  nature  that  but 
little  aid  is  derived  therefrom  in  determining  whether  the  i-elief  afforded  by  the 
law  in  a  given  case  will  be  deemed  by  equity  adequate.  Each  ease  is  deter- 
mined upon  its  own  facts  and  the  aijplicatUm  of  equitable  principles." 

Although  there  is  much  in  this  quotation  which  is  admirable — especially  the 
proposition  that  the  question  of  the  adequacy  or  inadequacy  of  legal  relief,  in 
evei-y  case,  must  be  determined  upon  equitable  ])rinciples,  ajiplied  by  the  equity 
tribunal  exercising  the  remedial  jurisdiction — yet,  there  are  several  obvious  criti- 
cisms which  must  be  made  upon  some  of  its  positions,  upon  its  general  reasoning, 
and  upon  its  conclusion.  1.  In  the  first  place,  the  passage  is  entirely  obiter,  not 
necessarily  involved  in  the  matters  at  issue,  and  not  entei'ing  into  the  ratio  deci- 
dendi of  the  case.  The  contract  itself  is  plainly  one  which  could  not  be  specifi- 
cally enforced.  It  was  clearly  impossible  for  the  court  to  compel  the  plaintiff  to 
maintain  his  elevator  through  a  period  of  fifteen,  or  perhaps,  thirty  years,  so  as  to 
handle  all  the  grain  the  defendants  might  transport,  and,  upon  the  principle  of 
mutuality,  it  could  not,  therefore,  be  enforced  against  the  defendants.  The  ques- 
tion of  specific  performance  was,  therefore,  out  of  the  case  at  the  very  beginning. 
Again,  it  is  plain,  and  so  the  court  holds,  that  damages  were  not  only  an  adequate 
remedy,  but  that  they  could  be  easily  computed.  In  fact,  all  the  plaintiff 
sought  to  obtain  was  compensation  for  handling  the  grain— they  asked  a  specific 
performance,  by  defendants,  only  that  they  might  eai-n  that  compensation,  and 
this  compensation  would  be  ascertained  at  law  in  exactly  the  same  manner,  and 
upon  the  same  proofs,  as  in  equity.  If  the  measure  of  damages  was  the  price 
per  bushel,  as  stipulated  in  the  contract,  the  number  of  bushels  transported  by 
defendants,  within  the  time,  would,  at  once,  furnish  the  desired  sum.  If  additional 
profits  were  allowed,  they  would  be  computed  upon  the  same  basis,  and  the  same 
evidence,  in  both  courts.  It  is  obvious,  therefore,  that  the  case  was,  as  the  court 
treated  it,  and  expressly  declared,  a  simple  action  at  law,  to  i-ecover  damages, 
which  the  parties  had  improperly  brought  on  the  equity  side,  and  all  that  was 
said,  concerning  the  equitable  jurisdiction  to  decree  a  specific  jierformance,  was 
iri-elevant  and  immaterial.  2.  In  the  second  jilace,  the  conclusion,  that  the  ques- 
tion of  adequacy  or  inadequacy  of  the  legal  remedy  of  damages,  in  "  each  case, 
must  be  determined  upon  its  ouni  facts,"  does  not  follow,  as  a  legitimate  nor  just 
inference,  from  the  premise,  that  "  it  is  impossible  to  state  a  general  rule  as  to  the 
power  of  equity  to  enforce  a  specific  performance  of  contracts  respecting  personal 
property,  choses  in  action,  and  personal  services,"  nor  from  the  very  general 
nature  of  the  definitions  cited  by  the  learned  judge.  It  has  never  been  supposed, 
that  the  doctrine  of  specific  performance,  as  applied  to  all  contracts,  excc^it  those 
relating  to  real  estate,  could  be  expressed  by  one  single,  general  formula,  which 
should  furnish  any  aid  in  the  decision  of  actual  cases.  The  inherent  differences 
in  the  nature  of  contracts  concerning  personal  property,  choses  in  action,  and  ])er- 
sonal  services,  prevent  such  a  comprehensive  statement  in  a  practical  form,  and 
no  judge  or  text  writer  has  ever  been  foohsh  enough  to  attempt  it.  But  this  fact  is 
not  inconsistent  with  the  establishment  and  recognition  of  several  definite  rules, 
which  determine  the  question  of  the  adequacy  or  inadequacy  of  damages  in 
many  subordinate  classes  of  contracts,  and  which,  therefoi-e,  furnish  the  pi-in- 
ciples  which  regulate  the  courts  in  administering  the  equitable  remedy  to  those 

40 


EXTEXr   AM)    LIMITATIO.XS.  :J7 

their  contract,  considered  as  an  individual  separated  from  others  of 
the  same  class,  but  by  those  relations  and  terms  in  tho  contracts  ^ow- 
eraily  of  the  class  to  which  the  indivi<lual  belon_i;s.  In  other  words, 
a  particnlar  contract,  the  subject  of  Judicial  action,  is  not  treated  as  a 
single  isolated  case,  and  the  inijuiry  is  not  whether  from  its  special 
provisions,  or  from  the  peculiar  situation  of' its  parties,  tlie  remedy  of 
damages  would  be  adequate  or  inadequate  ;  it  is  ratlier  treated  as  one 
of  a  class,  and  the  inquiry  is  whether,  in  agreements  generally  of  that 
kind,  the  terms  or  the  relations  of  the  parties  are  such  that  the  legal 
remedy  of  damages  is  adequate  or  inadequate.  For  example,  in  a 
contract  for  the  sale  of  land,  where  the  vendor  had  received  the  price 
and  had  refused  to  convey,  it  might  possibly  be  proved,  with  absolute 
certainty,  that,  from  the  peculiar  condition  of  the  land  in  question,  or 
of  the  real  estate  market,  or  of  the  purchaser  himself,  the  value  of  the 
property  in  money  would  be  altogether  m.n-e  advantageous  to  him 
than  the  Ira  t  in  specie,  for  which  he  had  bargained.  No  matter  how 
clear  the  proof  in  this  individual  case,  the  court  would  not  hesitate 

classes.  It  is  a  mistake  to  say,  that,  in  deciding'  upon  the  adequacy  of  the  le"-al 
remedy  for  all  contracts,  except  those  concerning-  lands,  "  there  is  no  fixed  rul(»  to 
gTiide  us,  other  than  this  one — that  the  remedy  must  be  indispensable  to  justice." 
It  has  been  shown,  in  the  preceding  sections,  that  the  doctrine  of  specific  jier- 
formance  recognizes  no  differences  inhering-  in  their  subject-matter,  between 
contracts  relating  to  real  estate  and  those  relating-  to  personal  estate,  or  personaJ 
services,  but  the  same  g-eneral  principle  is  applied  to  all  alike.  It  has,  also,  been 
shown — and  the  fact  will  be  further  illustrated  in  subsequent  portions  of  this  vol- 
ume— that  with  respect  to  many,  and  I  may  truly  say  most,  classes  and  species 
of  personal  contracts,  the  rules  which  determine  the  adequacy  o)-  inadequacy  of 
the  legal  remedy,  and  the  conseciuent  ajiplicability  of  the  eipiitable  remedy,  are 
as  well  settled,  as  cei-tain,  and  as  ju-ecise,  as  those  which  detei-mine  the  same 
matters  with  respect  to  contracts  concerning  lands.  3.  Finally,  waiving  the  fore- 
going criticisms,  the  language  of  Mr.  Ch.  J  Beck,  although  somewhat  loose,  is 
not,  when  correctly  interpreted,  and  read  under  the  limitations  furnished  by  the 
facts  of  the  case — which  must  always  be  put  upon  the  genei-al  expressions  found 
in  a  judicial  opinion— inconsistent  with  the  positions  of  the  text.  He  does  not 
claim  that  the  question,  as  to  the  sufficiency  of  the  legal  remedy,  must  be  decided 
upon  the  facts  and  circumstances  of  each  particular  case  of  conti-act,  ti-eated  as  an 
individual  instance,  and  without  reference  to  the  dais,  kind,  or  species  of  agree- 
ments to  which  it  belongs.  He  does  not  mean,  for  example,  that  an  ordinary  con- 
ti-act  for  the  sale  of  merchandize  should  be  specifically  enforced  ag-ainst  the  sellei-. 
because,  it  appears,  that  he  is  insolvent,  and  cannot  pay  the  damages,  oi-  that, 
from  the  peculiar  situation  of  the  purchaser,  the  goods,  in  specie,  would  be  more 
advantageous  to  him  than  their  value  in  money.  The  learned  judge  admits  that 
each  case  must  be  decided  "by  the  application  of  equitable  principles,"  and  that 
the  "justice  "  to  be  promoted  is  the  somewhat  artificial  justice  dispensed  and  for- 
mulated by  the  decisions  of  equity  ti-ibunals.  These  expressions,  although  loose, 
really  admit  the  operation  of  all  the  special  rules  whi(!h  have  been  settled  by  the 
lo^urts,  and  described  in  the  text.  a\ 


38  SPECIFIC  rERFORMANCE   OF  CONTRACTS. 

for  a  moment,  ow  such  grounds,  to  decree  a  specific  performance  if 
demanded,  because  the  doctrine  is  settled  that  in  contracts  for  the  pur- 
chase and  sale  of  land,  as  a  class,  damages  are  inadequate,  and  this 
general  rule  would  not  yield  to  the  special  circumstances  of  a  particu- 
lar case.  On  the  other  hand,  in  a  contract  for  the  sale  of  ordinary- 
merchandise,  the  purchaser  might  show  his  peculiar  situation  which 
rendered  the  goods  greatly  more  advantageous  to  him  than  their 
value  in  money, — as,  for  example,  his  personal  need  of  the  articles  and 
his  distance  from  a  market  which  w^ould  enhance  the  cost  of  procuring 
others  of  the  same  kind,  and  yet  he  could  not,  by  paying  or  tendering 
the  price,  compel  a  specific  performance  and  a  delivery  of  the  goods, 
because  the  riile  is  settled  that  in  contracts  for  the  sale  of  ordinary 
merchandise  and  other  similar  chattels,  the  legal  damages  are 
adequate.  These  supposed  cases  sufficiently  explain  my  meaning. 
In  administering  the  equitable  remedy  of  specific  performance,  and 
so  far  as  it  depends  upon  the  adequacy  or  inadequacy  of  le^al  dam- 
ages, the  courts  are  guided  by  considerations  which  have  respect  to 
classes  of  contracts  having  the  same  or  similar  qualities  and  incidents 
connected  with  their  subject-matter,  terms,  or  parties,  and  rules  are 
established  with  greater  or  less  certainty,  precision,  and  comprehen- 
siveness for  each  class  separately.  It  should  be  observed,  in  conclud- 
ing this  discussion,  that  the  adequacy  or  inadequacy  of  the  legal 
remedy,  in  all  cases,  must  be  determined  upon  equitable  principles. 
As  equity  alone  can  administer  the  relief  of  specific  performance, 
equity  alone  can  decide  whether  the  conditions  for  its  exercise  exist 
in  any  contract ;  and,  in  making  the  decisions,  must  apply  the  prin- 
ciples and  doctrines  which  are  recognized  as  the  basis  of  its  own  juris- 
diction, and  not  those  which  control  the  action  of  another  forum.(l) 
The  impracticability  of  a  legal  remedy. 

Sec.  28.  Second.  This  second  ground  of  the  equitable  juris- 
diction includes  two  cases,  (1)  where,  from  the  lack  of  some  legal 
formality  or  condition  in  the  contract,  no  action  at  law  can  be  main- 
tained ;  and  (2)  where,  from  some  peculiar  feature  of  the  contract, 
inhering  either  in  its  subject-matter,  in  its  terms,  or  in  the  rela- 
tions of  its  parties,  it  is  impossible  to  arrive  at  a  legal  measure  of 
damages  at  all;  or  at  least  Avith  any  sufficient  degi-ee  of  certainty, 
so  that  no  real  compensation  can.be  obtained  by  means  of  an  action 
at  law.  Both  these  cases  may  be  combined  under  the  single!  designa- 
tion— the  impracticability  of  damages  as  a  remedy.  Several 
species  of  contracts,  referable  to  the  first  ground  as  well  as  to  this, 

(1)  See  per  Beck,  C.  J.,  in  Richmond  v.  Dubuque,  etc.,  Railroad,  33  Iowa,  480, 
481. 

42 


EXTKyT  Ayn  jj.uitatioas.  39 

have  already  been  discussed  in  preceding  sections,  and  nred,  llicro- 
fore,  only  to  be  nieutioned  in  the  present  connection  without  any 
extended  description.  I  shall  jiroceed  to  enumerate,  and,  as  far  as 
necessar}',  describe  the  various  kinds  of  agreements  which  are  specili- 
cally  executed,  because  a  legal  remedy  of  damages  is  impracticable. 
Where  the  plaintiff  has  partly  failed  in  performance. 

Sec.  29.  The  first  general  class  embraces  those  contractb  in  which 
the  plaintiff,  by  reason  either  of  some  extrinsic  circumstance,  or  of 
his  own  default,  has  not  performed,  or  even  cannot  perform,  all  the 
conditions  on  his  part  necessary  to  be  performed,  in  order  that  an 
action  at  law  may  be  maintained  thereon ;  but  which,  nevertheless,  a 
court  of  equity  regards  as  binding  and  will  enforce.  1'he  law  holds 
parties  strictly  to  tlie  very  terms  of  their  engagements,  and  demands 
from  the  plaintiff  an  exact  performance  of  all  the  stipulations  on  his 
part  which  are  essential  to  a  recovery,  or  else  no  legal  right  of  action 
accrues  to  him.  Equity  distinguishes  between  those  terms  and  stipu- 
lations which  are  of  the  essence  of  the  contract,  and  those  which  are 
not  of  the  essence,  and  does  not  permit  the  defendant  to  set  up  a 
breach  of  the  latter  as  complete  bar  to  all  relief,  or  as  a  sufficient 
reason  for  wholly  refusing  to  execute  the  agreement.  In  these  cases 
no  action  at  law  can  be  maintained ;  but  equity,  if  the  contract  is 
otherwise  a  proper  one,  W'ill  decree  a  specific  performance  with  such 
compensations  or  allowances  as  may  be  found  just  to  the  parties. 
The  principle  was  thus  stated  by  Lord  Eldon  :  "  Lord  Thurlow 
used  to  refer  the  doctrine  of  specific  performance  to  this — that  it  is 
scarcely  possible  that  there  may  not  be  some  small  mistake  or  inaccu- 
racy— as,  that  a  lease  held  in  trust  represented  to  be  for  twenty-one 
years  may  be  for  twenty  years  and  nine  months — some  of  these  little 
circumstances  that  could  defeat  an  action  at  law,  and  yet  lie  so  clearly 
in  compensation  that  they  ought  not  to  prevent  the  execution  of  the 
contract. "(1)  Even  when  the  partial  -failure  or  inability  to  perform, 
and  the  consequent  loss  of  a  legal  remedy,  result  directly  from  the 
default  of  the  plaintiff  himself,  the  contract  will  be  specifically 
enforced,  if  the  relief  is  demande;!  by  e(iuitable  principles ;  as,  for 
example,  when  the  plaintiff"  has  performed  substantially,  but  not  with 
such  exactness  in  respect  to  all  the  terms  that  he  could  maintain  an 
action  at  law. (2)     In  this  general  class  are   included  all  the  cases 

(1)  Mortloc.k  1).  BuUer,  10  Ves.  30."),  30(j ;  and  seo  Stewai-t  v.  Alliston,  1  Mcr. 
26,  32.  [So,  a  contract  executc<l  Ity  an  atrent  so  as  to  bind  liiiu  instead  of  his 
pi'inci])al  will  he  enforced;  Taylor  v.  Ai,'-i'icultural  Assn.  (J'.t  Ala.  li2!l.J 

(J)  Davis  V.  Hone.  2  Sch.  iS:'L('r.  341.' H47:  Voorhees  v.  De  Meyer.  2  Barh.  37; 
McL'orckle  v.  Bi-own,  9  Sin.  &  Marsli.  11)7;  Coale  v.  Barney,  1  (tIII  &  .loim.  324; 
fcjhavv  ('.  Livermoi'e,  2  Gi-eenc;  (Iowa).  338.  [See,  also.  Van  Ornian  v.  Merrill, 
27  Iowa,  476  ;  Towner  v.  Ticknor,  112  111.  217.  In  this  csuse  si)c(;iric,  performance 
wa<<  enforced  agrainst  the  vendee  of  mill  jiroperty  who  refnsed  to  pei-form  on  lii'» 
part  because  the  mill  wheel  was  ont  of  repair.  Full  compensation  for  tiie 
deficiency  could  be  made  in  damajifes.  | 

43 


40  SPECIFIC    PERFORMANCK    OF  CONTRACTS. 

where,  from  a  partial  failure  by  the  plaiiitiflf,  a  specific  execution  is 
decreed  with  compensation  on  abatement. 

Contracts  invalid  at  law. 

yEc.  BO.  The  second  general  class  embraces  contracts  which  are  not 
valid  in  law — that  is,  which  the  law  does  not  treat  as  contracts  at  all; 
but  which  equity  regards  as  binding  in  conscience,  and  enforces  by 
its  remedy  of  specific  performance.  The  legal  invalidity  may  result 
from  the  non-observance  of  some  statutory  requirements  concerning 
the  mode  of  making  the  agreement,  or  from  certain  doctrines  of  the 
common  law,  irrespective  of  statute,  affecting  its  terms  or  its  subject- 
matter.  By  far  the  most  numerous  and  important  species  of  contracts 
contained  in  this  class  are  those  which,  being  void  at  law  under  the 
statute  of  frauds,  have  been  part  performed  by  the  plaintiff,  and  will, 
therefore,  be  wholly  executed  in  specie,  at  his  suit  and  for  his  benefit, 
by  courts  of  equity.  The  theory  upon  which  equity  proceeds  in 
administering  its  specific  remedy  in  such  cases  is,  that  the  defendant 
having  permitted  the  plaintiff  to  treat  the  agreement  as  binding,  and 
to  do  positive  acts  based  upon  such  assumption,  it  would  be  a  fraud 
in  him  to  repudiate  his  undertaking,  and  to  set  up  the  statute  as  an 
obstacle  in  the  way  of  its  completion.  The  doctrine  is  most  frequently 
applied  to  contracts  for  the  sale  of  land  which  have  been  part  per- 
formed by  the  purchaser,  but  is  not  confined  to  them  ;  it  is  extended 
to  those  contracts  concerning  things  personal  or  things  in  action  which 
the  statute  of  frauds  requires  to  be  in  writing,  but  which,  when  verbal, 
are  in  their  nature  susceptible  of  a  part  performance ;  as,  for  example, 
verbal  ante-nuptial  agreements  for  the  settlement  of  personal  estate. (1) 
In  order  that  the  court  may  exercise  its  jurisdiction  and  specifically 
enforce  a  verbal  contract  void  by  the  statute,  which  has  been  part 
performed,  the  agreement  must  be  of  such  a  nature,  in  respect  to  its 

(1)  Goufjh  v.  Crane,  3  Md.  Ch.  119  ;  4  Md.  31G.  Contracts  for  the  sale  of  chat- 
tels, or  things  in  action,  do  not  fall  within  this  principle,  because  the  very  acts 
which  would  amount  to  the  part  performance  of  the  vei-bal  stipulation,  render  it 
valid  at  law  by  the  express  provisions  of  the  statute  itself;  and  there  is  no  neces- 
sity of  any  etjuitable  interposition — such  as  a  part  payment  in  whole  or  in 
]iai-t  of  the  price,  and  receipt  and  acceptance  in  whole  or  in  part  of  the  chattels. 
The  jurisdiction  where  contracts  void  by  the  statute  of  frauds  have  been  part 
performed,  will  be  fully  examined  in  the  sequel,  and  I  now  cite  a  few  cases  only 
to  illustrate  the  propositions  of  the  text.  Buckmaster  v.  Harroji,  7  Ves.  346,  per 
Sir  William  Grant  ;  Mundy  v.  Jolliffe,  5  My.  &  Cr.  177,  per  Lord  Cottenham  ; 
London,  etc.,  R'y  Co.  v.  "Winter,  Cr.  &  Ph.  57;  Earl  of  Lindsey  v.  Great  Northern 
R'y  Co.,  10  Ha.  664,  700  ;  Kirk  v.  Bromley  Union,  2  Phil.  640  ;  Phillips  v.  Thomp- 
son, 1  John.  Ch.  131  ;  Lord  v.  Underdunk,  1  Sandf.  Ch.  46  ;  Jervis  v.  Smith,  1 

Hoff.  Ch.  470;  Annan  v.  Merritt,  13  Conn.  47S ;   [Smith  v.  Smith,  125  N.  Y.  224 

(parol  agreement  to  give  a  lien  on  land)]. 

44 


EXTENT  A.\l)    I.IMITATIOSS.  41 

terms  and  its  subject-iuatter,  tliat  tlie  court  could  docreo  its  s[)Ocific 
execution  if  it  were  in  writing, (1) 

ISec.  81.  There  are  argreenuMits  wliidi  tin*  coiuinou  law,  hy  viitiif  ol" 
its  own  doctrines,  irrespective  of  statutory  regulation,  treats  as  invalid, 
as  not  contracts,  and  for  which  it  furnishes  no  remedy;  but  which 
equity,  in  the  applicatuin  of  its  conscientious  ]>rinciples,  cousiih'rs  as 
binding,  and  enforces  by  awarding  its  relief  of  a  sp(>cilic  jieifoiin- 
ance.  The  following  ar(^  some  examples:  An  agieemiMit  respecting 
the  disposition  of  a  possibility  or  hope  of  succession  is  not  valid  at 
the  common  law,  so  that  if  an  h(Mr,  during  the  life-time  of  his  ances- 
tor, should  assign  his  expectancy,  or  agree  to  convey  the  property, 
the  contract  w-ould  be  legally  void,  although  he  should  afterwards 
inherit  or  succeed  to  the  estate. (2)     Equity,  however,  will  hold  such 

(1)  Kirk  V.  Bromley  Union,  '1  Phil.  040.  Mr.  Fry  states  tliis  iloctrino  much 
broader,  as  follows :  "  The  agreement  must  be  of  such  a  nature  that  the  court 
■would  have  had  jurisdiction  in  resyiect  of  it,  in  case  it  had  been  in  writing'.  When 
the  court  has  jurisdiction  in  the  original  subject-matter,  viz  :  the  contract,  the 
want  of  writing-,  will  not  deprive  the  court  of  it  where  there  is  a  part  perform- 
ance. But  the  want  of  writing  cannot  itself  be  made  the  g  'ound  of  jurisdiction  ; 
for  then,  all  parol  contracts,  which  the  statute  of  frauds  retjuires  to  be  in  writing, 
might  be  enforced  in  ecpiity  when  there  was  a  part  i)erformance."  Fry  Sp. 
Perfm.  p  178  (marg.  page),  $  392.  The  case  cited  does  not,  on  its  facts,  involve 
such  a  broad  conclusion  ;  it  only  insists  that  a  verbal  conti-act  do  work  and  labor, 
building,  etc.,  part  performed,  could  not  be  specifically  enforced,  because  it  could 
not  be  if  it  was  written.  I  think  the  proposition  is  too  broad,  and  is  based  upon 
a  mistaken  notion  of  the  foundation  of  the  rule.  It  seems  to  me  equity  docs 
acquire  jurisdiction  for  the  very  reason  that  there  is  no  remedy  at  law,  and 
applying  other  equitable  principles,  it  is  inequitable  for  the  party  to  set  up  and. 
rely  upon  the  legal  invalidity.  Why,  then,  does  not  the  ecjuitable  remedy  extend 
to  all  contracts  void  by  the  statute  of  frauds  which  have  been  part  performed  1  It 
should  be  remembered,  that  the  statute  only  embraces  a  few  classes  of  contracts, 
viz :  those  containing  land  ;  those  for  sale  of  chattels  and  choses  in  action,  over 
$50 ;  those  not  to  be  performed  within  a  year  ;  thosi;  in  ct)ntemplation  of  mar- 
riage, and  those  of  guaranty.  I  have  already  oxj)laiiie(l  why  the  second  class  do 
not  fall  within  the  equity  remedy,  viz  :  because  the  only  possible  acts  of  jiart 
performance  inake  them  valid  at  law  under  the  statute.  In  regard  to  other  con- 
tracts it  is  to  be  observed,  (1),  that,  with  respect  to  many  of  them,  it  is  impossible 
that  there  should  be  any  acts  of  part  pei-formance  which  can  satisfy  the  require- 
ments of  the  equitable  doctrines  on  the  subject,  viz  :  acts  done  by  the  plaintiff  by 
virtue  of  the  contract,  treating  it  as  a  subsisting  agreement,  and  of  such  an 
inti'insic  character  that  he  cannot  be  restored  to  his  former  ])ositi()n,  so  that  it 
would  be  a  virtual  fraiid  \i\wx\  him  to  assert  the  invalidity  of  the  agreement ;  (2), 
that  all  other  verbal  conti-acts,  which  may  be  part  ])erformed,  and  which,  nevei"- 
theless,  eijuity  will  not  specifically  enforce,  are  of  such  a  nature  that  a  specitic 
performance  woidd  be  inqxKssible  at  all  events,  even  if  in  writing.  It  is  abund- 
antly settled  that  verbal  contracts  concerning  personal  iirojierty,  j)ai't  i)erfbriiied, 
may  be  specifically  enforced,  if  of  such  a  nature  that  an  enforcement  is  pi-acticable . 

(2)  Jones  v.  Roe,  3  T.  R.  88,  93.  45 


42  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

contracts  to  be  binding,  and  decree  their  specific  execution,  if  they 
are  free  from  fraud,  over-reaching,  and  other  objections  whicli  would 
generally  prevent  all  equitable  relief.(l)  Another  case  is  that  of 
agreements  to  assign  things  in  action,  which  are  enforced  in  equity, 
although  at  the  common  law  choses  in  action  are  not  assignable,  and 
the  assignee  acquires  thereby  no  title  which  he  can  assert  in  a  legal 
action. (2)  Still  another  case  is  that  of  executory  agreements  nuide 
betvreen  a  man  and  -woman  -who  after-wards  marry,  and  which, 
for  that  reason,  become  void  at  the  common  law,  but  wdiich  equity  may 
specifically  execute  against  the  husband  or  wife,  as  the  case  may  be, 
at  the  suit  of  the  other.(3)  The  last  example  which  I  shall  mention  is 
the  case  of  contracts  made  by  an  owner  to  convey  his  land  at  some 
future  day  named,  and  he  dies  before  the  time  for  completion 
arrives.  At  the  common  law  the  contract  is  thus  rendered  impossible, 
and  no  action  can  be  maintained  upon  it.  The  administrator  cannot 
convey,  because  he  acquires  no  interest  in  the  land,  and  no  legal  obli- 
gation devolves  upon  the  heir.  Equity,  however,  enforces  a  specific 
performance  upon  the  heir.  (4)  Legislation,  in  many  of  the  states  of 
this  country,  has  modified  the  legal  dogmas  upon  which  some  of  the 
foregoing  cases  of  equitable  relief  were  originally  based,  and  have 
wholly  or  partially  removed  the  invalidity  which  existed  at  the  com- 
mon law.  In  nearly  all  the  states  all  things  in  action,  except  claims 
to  damages  for  personal  torts,  and  a  small  class  of  contracts  of  a 
specially  personal  nature,  are  assignable,  so  far,  at  least,  that  the 
assignee  can  sue  at  law  upon  them  in  his  own  name.  Contracts  made 
between  men  and  women,  in  contemplation  of  marriage,  are  declared 
to  remain  in  full  force  and  effect  between  the  parties  after  their  mar- 
riage in  New  York.(5)     In  many  states  the  heirs  of  a  vendor,  adult 

(1)  Wiseman  v.  Roper,  1  Rep.  in  Ch.  154  ;  Beckley  v.  Newland,  2  P.  Wms.  182  ; 
Hobson  V.  Trevor,  2  P.  Wms.  191 ;  Wright  v.  Wright,  1  Ves.  Sen.  409 ;  Wethered 
V.  Wethered,  2  Sim.  183  ;  Hyde  v.  White,  5  Sim.  524 ;  Lyde  v.  Mynn,  1  My.  & 
K.  693 ;  Alexander  v.  Duke  of  Wellington,  2  R.  &  My.  35  ;  Houghton  v.  Lees,  1 
Jur.  (N.  S.)  862  ;  Lewis  v.  Madisons,  1  Munf.  303  ;  Price  v.  Winston,  4  Munf.  63. 
In  some  of  these  cases  the  succession  was  by  descent;  in  others  by  will.  [See, 
further,  3  Pom.  Eq.  Jur.,  §§  1285-1291.] 

(2)  See  cases  cited  ante,  §  20. 

(3)  Cannel  v.  Buckle,  2  P.  Wms.  242 ;  Acton  v.  Acton,  Prec.  in  Chan.  237  ; 
Gould  V.  Womack,  2  Ala.  83  ;  Crostwaight  v.  Hutchinson,  2  Bibb.  407.    Ante,  §  K!. 

(4)  Milnes  v.  Gery,  14  Ves.  403.  in  arguments  of  counsel ;  Glaze  v.  Drayton,  1 
Dessau.  109 ;  Wilkinson  v.  Wilkinson,  1  Dessau.  201 ;  Saunders  v.  Simpson,  2 
Har.  &  John.  81,  where  a  contract  to  convey  was  enforcetl  against  devisees  of 
the  vendor ;  Newton  v.  Swazy,  8  N.  H.  9. 

(5)  Laws  of  N.  Y.  1849,  ch.  375,  §  3. 

46 


EXTENT  AND   LLV/TArrnXS.  43 

or  infant,  are  made  liable  to  fiillill  liis  contracts  to  convey,  if  they 
have  inherited  the  lands;  and  sometimes  a  special  summary  i)roceed- 
ing,  for  compelling  a  specific  i»erformance  against  the  lieirs,  lias  been 
given  by  statute  in  addition  to  the  more  formal  suit  in  equity. (1) 

Contracts  for  taking  land  by  railroad  companies. 

Sec.  32.  To  the  same  general  class  may  be  refeired,  I  think,  a 
peculiar  case,  which  has  arisen  in  England,  under  the  statutes  giving 
railway  and  other  companies  compulsory  power  to  take  the  land  of 
private  owners  for  their  own  public  uses  —  "  the  Lands  Clauses  Con- 
solidation Act."  When  a  notice  to  treat  for  certain  land,  as  pre- 
scribed by  the  statute,  has  been  served  on  the  owner  by  the  com- 
pany —  at  all  events,  when,  in  pursuance  of  such  notice,  the  price  to 
be  paid  for  the  land  has  been  fixed  by  the  arbitrator  —  a  relation, 
having  all  the  effect  of  a  contract  in  equity,  at  once  arises  between 
the  parties.  No  acceptance  by  the  owner  is  necessary,  since  he  has 
no  power  to  refuse,  and,  by  virtue  of  the  statute,  he  and  the  company 
acquire  the  rights  and  obligations  of  vendor  and  purchaser.  Although 
there  is  clearly  no  contract  in  this  transaction,  since  there  is  no  mutual 
assent,  yet  equity  treats  it  as  a  contract,  and  will  enforce  a  specific 
performance  against  either  of  the  parties  at  the  suit  of  the  other. (2) 
Under  the  analogous  statutory  means  for  acquiring  land  by  the  right 
of  eminent  domain  in  the  United  States,  it  is  settled  that  no  such 
relation  between  the  owner  and  the  corporation  arises  from  the  com- 
mencement or  prosecution  of  the  proceedings.  The  o\\Tier  acquires 
no  rights  against  the  corporation  to  compel  it  to  proceed,  its  acts  are 
tentative,  and  it  can  entirely  abandon  the  proceedings  at  any  time 
prior  to  the  order  of  the  court  confirming  the  report  of  the  commis- 
sioners, or  of  the  jury,  and  directing  the  payment  of  the  amount 
awarded  for  compensation  and  damages,  and  perhaps  at  any  time 

(1)  See  the  subsequent  section  on  this  subject.  Ordinai'ily  an  lieir  is  not  com- 
pelled to  bind  himself  by  personal  covenants  when  executinj^  the  contract  to  con- 
vey made  by  his  ancestor.     See  Hill  v.  Ressegieu,  17  Barb  162. 

(2)  Walker  v.  Eastern  Counties  Ry.  Co.,  6  Ha.  594  ;  Doo  v.  London  and  Cory- 
don  Ry.  Co.,  1  Railw.  Cas.  2.'>7  ;  Stone  v.  Commen^ial  Ry.  Co.,  4  My.  &  Cr.  122  ; 
Reg.  V.  Birmingham,  etc.,  Ry.  Co.,  1.5  Cj.  B.  634,  overruling  Bi-ocklebank  i\ 
"Whitehaven  Junction  Ry.  Co.,  1.5  Sim.  632  ;  Harding  v.  Metroi)oHtan  Ry.  Co.,  L.  R. 
7  Ch.  154 ;  Harding  v.  Metropolitan  Ry.  Co.,  20  W.  R.  321  ;  Doherty  v.  Waterford, 
etc.  Ry.  Co.,  13  Ir.  Eq.  R.  538,  per  Ld.  Chan.  Brady.  And  see  on  this  subject 
Adams  v.  Bhickwall  Ry.  Co.,  2  McN.  &  G.  118  ;  Morgan  v.  Mihnau,  3  De  G.,  M. 
&  G.  36,  per  K.nicht  Brccb,  L.  J. ;  Leominster  Canal  Co.  v.  Shrewsbury,  etc.,  Ry. 
Co.,  3  K.  &  J.  654  ;  3  Jur.  (N.  S.)  030  ;  Inge  v.  Birmingham,  etc.,  Ry.  Co.,  3  De  G., 
M.  &  G.  658 ;  1  Sm.  &  G.  347  ;  Regent's  Canal  Co.  v.  Ware,  23  Beav.  575 ;  Doug- 
lass V.  London  &  N.  W.  Ry.  Co.,  3  K.  &  J.  173. 

47 


44  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

before  the  actual  payment  or  taking  possession  of  the  land.(l)  Ev^en 
when  the  rights  of  the  parties,  the  one  to  the  land  and  the  other  to 
the  money  awarded,  have  been  fixed  by  means  of  the  statutory 
proceedings,  they  are  not  enforced  in  equity  by  a  suit  for  a 
specific  performance.  When,  however,  the  corporation  has  taken 
possession  of  the  land  without  payment  of  the  damages  awarded, 
the  owner  has,  in  some  states,  a  vendor  s  lien,  which  he  may  enforce, 
in  the  usual  manner,  by  an  equitable  action.  If,  instead  of  resort- 
ing to  the  special  statutory  proceedings  for  acquiring  title,  the  corpo- 
ration enters  into  an  ordinary  contract  with  the  owner  for  the  sale  and 
purchase  of  the  land,  a  court  of  equity  could  decree  a  specific  per- 
formance against  either  party,  as  in  the  case  of  all  similar  agreements. 

"Where  the  terms  are  incomplete. 

Sec  33.  A  third  class,  or,  more  correctly,  gi'oup,  consists  of  contracts 
concerning  a  subject-matter  which  would  admit  a  sufficient  remedy 
in  damages,  but  which  are  so  connected  with  circumstances  and  inci- 
dents, or  are  so  incomplete  in  their  terms,  that  a  common-law  action 
upon  them  cannot,  perhaps,  be  maintained,  and  which,  nevertheless, 
equity  considers  as  binding,  and  enforces  by  its  own  remedy  of  spe- 
cific performance.  As  the  interposition  of  equity  here  depends  upon 
the  form  and  incidents,  and  not  upon  the  subject-matter,  these  agree- 
ments may  be  of  various  kinds.  The  following  are  instances :  An 
agreement  for  the  purchase  of  timber  was  not  the  final  contract,  in 
form,  between  the  parties,  but  was  to  be  made  complete  by  subse- 
quent writings.  The  remedy  for  its  breach,  by  an  action  at  law, 
being  doubtful,  on  account  of  this  incompleteness,  the  court  of  chan- 
cery decreed  its  specfic  execution. (2)  Contracts  for  the  purchase  of  a 
debt  or  other  thing  in  action,  when  the  plaintiff  does  not  acquire  the 
legal  title  so  as  to  enable  him  to  sue  at  law,  are,  on  the  ground  above 
stated,  among  others,  enforced  in  equity. (3)  At  an  early  day,  it  was 
held  that  equity  would  never  interfere  to  specifically  execute  a  con- 
tract, for  the  breach  of  which  an  action  at  law  for  damages  could  not 

(1)  This  is  the  settled  doctrine  under  the  forms  of  statutes  ordinarily  existing^. 
See  Stacey  v.  Vt.  Cent.  R.  R.,  27  Vt.  39,  and  cases  cited ;  Baltimore,  etc.,  R.  R. 
V.  Nesbit.  10  How.  U.  S.  395 ;  In  re  Commissioners  of  Wash.  Park,  56  N.  Y.  144  ; 
1  Redtield  on  Railways,  256,  §  3  (5th  ed). 

(2)  Buxton  V.  Lister,  3  Atk.  383,  per  Lord  Hardwicke.  This  doctrine  does  not 
extend  to  all  incomplete  contracts,  but  only  to  those  so  technically  incomplete  as  to 
render  an  action  at  law  doubtful,  but  not  so  incomplete  as  to  prevent  their 
enforcement  in  equity. 

(3)  Wi-ig-ht  V.  Bell,  5  Pri.  325  ;  Doloret  v.  Rothschild,  1  S.  &  S.  590.  See  West  v. 
Wayne,  3  Mo.  16  ;  Wheeler  v.  Clinton  Canal  Bk..  Harring-.  Ch.  449 ;  PhiUps  v. 
Thompson,  1  Johns.  Ch.  132. 

48 


EXTE.XT  AXD    LIMITATIONS.  45 

be  sustained. (1)  This  restriction  no  longer  prevails;  and,  in  many 
cases,  whore  no  action  could  be  maintained  at  law  for  damages,  the 
agreement  will  be  specifically  enforced  in  equity.(2) 

Where  there  is  no  basis  for  the  computation  of  damages. 

Sec.  34.  The  impracticability  of  the  legal  remedy,  in  the  three 
foregoing  classes,  consists  iii  the  fact,  that  no  action  at  law  can  be 
maintained  upon  the  agreements,  which,  being  binding  in  conscience, 
are,  nevertheless,  enforced  by  courts  of  equity.  There  are  other  cases, 
in  which  an  action  at  law  may  be  brought,  but  can  give  no  practical 
relief,  because  there  is  no  basis  upon  which  damages  can  be  ascer- 
tained with  certainty ;  in  other  words,  there  can  be  no  legal  measure 
of  damages,  but  they  must,  of  necessity,  be  a  matter  wholly  of  conjec- 
ture and  assumption. (3)  This  lack  of  any  certain  basis  upon  which 
to  calculate  the  damages  according  to  legal  rules,  may  inhere  in  the 
subject-matter  of  the  agi'eement,  or  in  the  sj^ecial  nature  of  its  terms. 

(1)  Bettesworth  v.  Dean  and  Chai)ter  of  St.  Paul's,  Sel.  Cas.  in  Ch.  00,  GO  ;  [see, 
also,  Comei-  v.  Blankhead,  70  Ala.  493;  Kellogg  v.  Lavender,  9  Neb.  41S]. 

(2)  Lennon  v.  Napper,  2  Sch.  &  Lef.  682 ;  Cannel  v.  Buckle,  2  P.  Wnis.  242  ; 
Getchell  v.  Jewett,  4  Greenl.  350  ;  Andrews  v.  Andrews,  28  Ala.  432  [contract 
between  husband  and  wife,  which  was  void  at  law] ;  Story  Ecj.  Jur.  §  741;  [Pom. 
Eq.  Jur.  §  1297]. 

(3)  In  Palmer  v.  Graham,  1  Pars.  Eq.  476,  479,  per  King,  P.  J.,  this  doctrine 
was  clearly  and  forcibly  stated  :  "That  plaintiff  could  have  maintained  an  action 
at  law  for  this  breach,  cannot  be  doubted.  But,  has  he  not  also  the  more  effective 
remedy,  in  this  court,  of  compelling-  the  specific  execution  of  the  contract,  and  of 
restraining  defendant,  by  injunction,  from  any  further  violation  of  it?  It  is  true, 
that,  as  a  general  rule,  equity  will  not  entertain  jurisdiction  for  the  specific  exe- 
cution of  agreements  respecting  things  merely  personal  in  their  nature.  Yet,  this 
rule  is  limited  to  cases  where  a  compensation  in  damages  furnishes  a  complete 
and  satisfactory  remedy.  But  in  cases  where  there  exists  an  utter  uncertainty  in 
aiiy  calculation  of  the  davutges  arising  from  the  breach  of  a  contract  personal  in 
its  nature,  where  the  measure  of  damuyes  is  purely  conjectural,  equity  loill  int'Tvene, 
because,  though  there  may  exist  a  remedy  at  law,  yet  that  remedy  is  inadeqimte  and 
insufficient.  The  nearest  analogies  to  a  case  like  the  present  are  to  be  found  in 
bills  brought  to  prevent  a  vendor  from  setting  up  a  trade  in  the  vicinity  of  a  place 
where  he  had  formerly  carried  on  that  trade,  the  good-will  of  which  he  had  sold, 
under  an  agreement  not  to  establish  a  similar  trade  within  certain  defined  limits. 
In  such  cases,  equity  has  enforced  the  specific  execution  of  the  contract,  by 
enjoining  the  vendor  against  setting  up  the  trade  within  the  prescribed  limits,  on 
the  ground  of  the  inadequacy  of  an  action  at  law  to  give  the  party  aggrieved  a 
full  and  ])erfect  remedy  for  such  a  breach  of  good  faith.  Citing  Hari-ison  v. 
Gardner,  2  Madd.  198  ;  "Williams  v.  Williams,  2  Sw.  253.  In  each  of  these  cases, 
an  action  at  law  coidd  have  been  entertained  ;  equity,  however,  entertaineil  jui-is- 
diction,  bacause  it  was  only  by  compelling  specific  performance  of  the  agreement 
that  plaintiff  could  obtain  complete  and  perfect  justice.  In  principle,  we  can  per- 
ceive no  distinction  between  these  cases  and  the  present.  Although  an  action  at 
law  might  lie,  yet  such  an  action  is  subject  to  all  the  objections  of  inadecjuacy  and 
insufficiency,  and  the  measure  of  damages  therein  would  be  equally  uncertaiu 
and  conjectural,  as  in  the  cases  cited,  where  equity  has  given  relief,  because  of 
the  want  of  fullness  in  the  common-law  remedies."  49 


46  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

I  shall  simply  enumerate  the  most  familiar  and  illustrative  examples. 
To  the  first  head — of  subject-matter — iway  be  referred  all  contracts 
concerning'-  unique  uud  i)recious  articles,  heir-looms,  rare  paintings, 
old  furniture,  aud  the  like,  in  which  there  is  no  market  price  to  fur- 
nish a  criterion,  nor  any  other  means  of  estimating  the  pretium  affec- 
iionis,  which  constitutes  the  real  value  to  the  owner.(l)  Also,  contracts 
ior  the  deliv  ery  of  deeds,  other  muniments  of  title,  and  instruments 
»v  writing,  whose  value  to  the  owner  might  be  priceless,  but  is  clearly 
oeyond  the  competency  of  a  jury  to  decide  by  the  application  of  certain 
legal  rules  ;(2)  and  many  contracts  for  the  assignment  and  transfer  of 
certain  peculiar  things  in  action,  in  which  the  damages  for  a  breach 
would  depend  upon  contingencies,  and  be  entirely  conjectural. (8)  To 
the  second  head — the  special  nature  of  the  terms — must  be  referred  a 
variety  of  different  agreements;  among  others,  contracts  in  which 
acts  are  to  be  done,  or  articles  delivered,  by  one  party,  and  payments 
are  to  be  made  by  the  other,  in  installments,  at  stated  times,  through 
a  number  of  years,  and  where,  to  compel  the  plaintiff  to  accept  a 
present  sum,  by  way  of  damages,  for  a  non-performance,  would  bv 
forcing  him  to  sell  his  expected  profits  for  a  price  wholly  conjectu- 
ral ;(4)  contracts  by  artists,  actors,  singers,  and  others  having  special 
skill,  or  knowledge,  to  render  personal  services  involving  the  use  of 
such  skill  or  knowledge,  which  are  analogous  to  agreements  concern- 
ing unique  and  precious  chattels,  there  being  no  customary  market 
price,  nor  other  means,  of  ascertaining  certain  damages  ;(5)  and  under- 
takings not  to  do  certain  specified  acts,  such  as  not  to  carry  on  a  trade, 
not  to  build,  or  not  to  build  above  a  fixed  height,  not  to  ring  a  bell 
except  at  certain  hours,  for  the  breach  of  which  pecuniary  compensa- 
tion would  be  purely  guess-work  and  assumption ; (6)  contracts  to 
erect  defined  structures,  for  the  benefit  of  the  plaintiff,  upon  land 
conveyed  to  the  defendant,  where  the  plaintiff  w^ould  have  no  means 
of  ascertaining  the  cost  by  performing  the  work  himself,  and  thus 
fixing  upon  the  actual  damages  resulting  from  a  breach. (7)  The 
foregoing  instances  are  sufficient  to  illustrate  and  establish  the  doc- 
trine, that   equity  may  interpose   and   specifically  enforce   a   large 

(1)  See  cases  cited,  ante,  §  12  n.  (1) 

(2)  Cases  cited,  ante,  in  §  13,  n.  (1) 

(3)  Cases  cited,  ante,  §  20. 

(4)  See  cases  cited,  ante,  §  15. 

(5)  See  a?ite,  §  12. 

(6)  Ante,  §  24. 

(7)  A7ite,  §  23.  See,  also,  for  another  case,  where  equity  has  enforced  an  agree- 
ment, because  a  common-law  court  cannot,  by  its  form  of  judg-ment,  do  justice 
to  all  the  parties ;  Beech  v.  Ford,  7  Ila.  208. 

50 


DISCRETIONARY  CHARACTER    OF  THE  REMEDY.  47 

variety  of  agi-eements,  where  tlie  measure  of  legal  damages  is  jjiirely 
conjectural,  and  the  legal  remedy  of  compensation  is,  therefore,  wholly 
impracticable.  These  cases  have  also  been,  and  generally  are,  cited 
to  show  that  equity  has  jurisdiction  where  damages  are  inadequate; 
but  the  inadequacy  here  consists  in  the  impossibility  of  arriving  at 
any  definite  amount  of  damages,  by  means  of  the  fixed  and  ccn-tain 
rules  which  govern  the  common-law  methods  of  administering  justice. 


SECTION  II. 
The  discretionary  character  of  the  remedy. 

Section  35.  Having  thus  described  the  intrinsic  nature  of  this 
equitable  remedy  as  ancillary  and  supplementary  to  the  ordinary 
legal  relief  of  debt  or  damages,  I  shall  next  discuss,  in  a  like  general 
manner,  the  other  important  attribute  mentioned  in  the  introductory 
chapter — its  discretionary  character.  Even  where  a  contract  belongs 
to  a  class  susceptible  of  enforcement,  the  right  to  its  specific  perform- 
ance is  not  absolute,  like  the  right  to  recover  the  legal  judgment. 
The  granting  this  equitable  remedy  is  a  matter  of  discretion  ;  not, 
indeed,  of  an  arbitrary,  capricious  discretion,  synonymous  with  the 
mere  pleasure  of  the  judge  ;  but  of  a  sound,  judicial  discretion,  con- 
trolled by  established  principles  of  equity,  and  exercised  upon  a  con- 
sideration of  all  the  circumstances  of  each  particular  case.  Where, 
however,  the  agreement  is  in  v.Titing,  is  certain  in  its  terms,  is  fair 
and  just  in  all  its  provisions,  is  for  a  valuable  consideration,  and  is 
capable  of  being  enforced  without  hardship  to  either  party,  it  is  as 
much  a  matter  of  course  for  a  court  of  equity  to  decree  its  specific  per- 
formance, as  for  a  court  of  law  to  award  a  judgment  of  damages  upon 
its  breach.  This  is  the  ordinary  language  as  repeated  by  judges  and 
text-writers.  I  propose  to  examine  it  with  care,  to  analyze  and  com- 
pare the  decisions,  and  to  ascertain,  if  possible,  the  true  nature  and 
exact  extent  of  this  "  discretion,"  which  is  constantly  attributed  to 
the  jurisdiction.  As  a  preliminary,  I  have  collected  in  the  foot-note 
extracts  from  the  judgments  of  several  able  courts,  both  ancient  and 
modern,  which  will  exhibit  the  judicial  opinion  in  all  its  different 
forms  of  expression. (1) 

(1)  Radcliffe  ii.  "Wai-ring'ton,  12  Ves.  332,  per  Lord  Erski.vk  :  "The  jurisdiction 
is  noi  compulsory  upon  the  court,  but  the  subject  of  discretion.  The  question  is 
not  what  the  court  must  do,  but  what  it  may  do,  under  the  circumstances,  either 

51 


48  SPECIFIC  PERFORMAyCE   OF  CONTRACTS. 

Meaning  of  "  discretion." 

Hec.  36.  lu  determining  the  real  force  and  effect  of  these  judicial 
opinions,  and  in  ascertaining  the  exact  nature  of  the  so-called  "dis- 
cretion "  exercised  by  the  courts,  it  is  necessary,  in  the  first  place,  to 

exercising-  the  jurisdiction  by  granting-  the  specific  performance,  or  abstaining 
from  it."  Joynes  v.  Statham,  3  Atk.  388,  per  Lord  Hardwicke  :  "  The  constant 
doctrine  of  this  court  is,  that  it  is  in  their  discretion  whether  in  such  a  bill  they 
will  decree  a  specific  performance,  or  leave  the  plaintiff  to  his  i-emedy  at  law  ;" 
and  in  Underwood  v.  Hitchcox,  1  Ves.  Sen.  279,  the  same  chancellor  said  :  "  The 
rule  of  equity  in  carrying  agreements  into  specific  performance  is  well  known, 
and  the  court  is  not  obliged  to  decree  every  agreement  entered  into,  though  for 
a  valuable  consideration,  in  strictness  of  law,  it  depending  on  the  circumstances." 
The  subject  was  carefully  considered  in  the  late  case  of  Willard  v.  Tayloe,  8  Wall. 
557.  The  suit  was  by  the  vendor  to  enforce  a  contract  empowering  him  to  pur- 
chase leased  property  at  the  expiration  of  ten  years,  for  a  price  which  was  con- 
ceded to  be  perfectly  fair  and  reasonable.  The  objection  raised  was  that  in  the 
meantime  the  war  had  changed  all  the  circumstances,  the  property  had  very 
largely  increased  in  value,  and  the  legal  tender  notes,  with  which  the  plaintiff 
pi'oposed  to  pay,  were  very  much  depreciated,  compared  with  gold.  The  opinion 
of  the  court,  per  Field,  J.,  after  holding  that  the  contract  was  legal,  binding  in 
law,  and  perfectly  fair  when  made,  jjroceeds  (p.  565) :  "  When  a  contract  is  of  this 
character,  it  is  the  usual  i:)ractice  of  courts  of  equity  to  enforce  its  specific  execu- 
tion, upon  the  application  of  the  party  who  has  complied  with  its  stipulations  on 
his  part,  or  has  seasonably  and  in  g-ood  faith  offered,  and  continues  ready  to 
comply  with  them.  But  it  is  not  the  invariable  practice.  This  form  of  relief 
is  not  a  matter  of  absolute  right  to  either  party ;  it  is  a  matter  resting- 
in  the  discretion  of  the  court  to  be  exercised  upon  a  consideration  of 
all  the  circumstances  of  each  particular  case "  [citing  several  leading- 
cases]  (p.  566).  "It  is  true  the  cases  cited,  in  which  the  discretion  of  the  court 
is  asserted,  arose  upon  contracts  in  which  there  existed  some  inequality  or  unfair- 
ness in  the  terms,  by  reason  of  which  injustice  would  have  followed  a  specific 
performance.  But  the  same  discretion  is  exercised  where  the  contract  is  fair  in 
its  terms,  if  its  enforcement,  from  subsequent  events,  or  even  from  collateral  cir- 
cumstances, would  work  hardship  or  injustice  to  either  of  the  parties,"  [citing- 
City  of  London  v.  Nash,  1  Ves.  Sen.  12 ;  Faine  v.  Brown,  cited  in  Ramsden  v 
Hylton,  2  Ves.  Sen.  306]  (p.  567) :  "  The  discretion  which  may  be  exercised  in 
this  class  of  cases  is  not  an  arbitrary  or  capricious  one,  depending  upon  the  mere 
pleasure  of  the  court,  but  one  which  is  controlled  by  the  established  doctrines 
and  settled  principles  of  equity.  No  positive  rule  can  be  laid  down  by  which 
the  action  of  the  court  can  be  determined  in  each  case.  In  general,  it  may  be 
said  that  the  specific  relief  will  be  granted,  when  it  is  apparent,  from  a  view  of 
all  the  circumstances  of  the  particular  case,  that  it  will  subserve  the  ends  of  justice  ; 
and  that  it  will  be  withheld  when,  from  a  like  view,  it  appears  that  it  will  bring- 
hardship  or  injustice  to  either  of  the  x^arties.  It  is  not  sufficient  to  call  forth  the 
equitable  interposition  of  the  court,  that  the  legal  obligation  under  the  contract  to 
do  the  specific  thing  desired  may  be  perfect.  It  must,  also,  appear  that  the  sjiecific 
enforcement  will  work  no  hardship  or  injustice  ;  lor  if  that  result  should  follow, 
the  court  will  leave  the  parties  to  their  remedies  at  law,  unless  the  granting  of 
the  specific  relief  can  be  accompanied  with  conditions  that  will  obviate  that  result. 
If  that  result  can  be  thus  obviated,  a  specific  performance  will,  generally,  in  such 
cases,  be  decreed  conditionally.     It  is  the  advantage  of  a  court  of  equity,  as 

52 


DISCRETIONARY  CHARACTER    OF  THE  REMEDY.  49 

distinguish  between  those  expressions  wliich  are  purely  obiter,  and 
those  which  are  not.  Huch  general  language  must  be  tested  by  and 
limited   to   the   particular  facts   of  the  various  cases  in  which  it  is 

observed  by  Lord  Rkdesdalk,  in  Davis  -j'.  Howe,  2  Sch.  &  Lef.  348,  that  it  can 
modify  the  demands  of  parties  axicording'  to  justice,  and  when,  as  in  that  cfu^e,  it 
would  be  inequitable,  from  a  change  of  circumstances,  to  enforce  a  contract 
specifically,  it  may  refuse  its  decree,  unless  the  party  will  consent  to  a  conscien- 
tious modification  of  the  contract,  or  what  would  generally  amount  to  iXw.  same 
thing,  take  a  decree  upon  condition  of  doing  or  relimpiishing  certain  things  to  the 
other  party."  Specific  jierformance  was,  therefore,  refused,  unless  tlie  vendee 
would  pay  the  price  and  interest  in  gokl,  but  decreed  on  condition  that  he  paid 
in  that  manner.  It  will  be  seen,  therefore,  that  the  discussion  on  the  subject  of 
"  discretion  "  formed  a  most  important  part  of  the  ratio  decedendi — in  fact,  was 
the  very  ground  of  the  decision.  Marble  Co.  v.  Ripley,  10  Wall.  339.  In  this 
case  specific  performance  was  asked  of  a  peculiar  contract,  intended  to  run 
through  many  years  and  perhaiis  indefinitely,  which  was  fair  and  equaljle  when 
made.  The  relief  was  objected  to,  among-  other  grounds,  bei;ause,  by  a  change  in 
circumstances,  the  agreement  had  become  one-sided,  very  advantageous  to  the 
party  seeking  the  decree,  and  very  burdensome  to  the  party  opposing.  On  this 
point  the  court,  per  Strong,  J.,  said  (p.  356) :  •'  The  next  question  is,  wlu'ther 
Ripley  was  entitled,  upon  his  cross-bill,  to  a  decree  against  the  Marble  Company 
for  a  specific  performance  of  the  contract.  The  comjiany  urge  that  the  contract, 
though  supposed  to  be  fair  and  equal  when  made,  has  in  the  lapse  of  time,  and  by 
the  operation  of  unforseen  causes,  arising  from  changed  circumstances,  l)ecome 
exceedingly  unfair,  unreasonable,  and  unconscionable,  so  that  a  decree  for  its 
specific  performance  would  tend  to  their  oppression  and  i-uin.  *  *  *  It  is  by 
no  means  clear  that  a  court  of  equity  will  i"efuse  to  decree  the  specific  perform- 
ance of  a  contract  fair  when  it  was  made,  but  which  has  become  a  hard  one  by 
the  force  of  subsequent  circumstances,  or  changing  events."  Cites  Fry,  p.  116, 
ch.  6,  that  the  hardshij^  must  be  judged  of  at  the  time  the  contract  was  made. 
*'  Judge  Story,  indeed,  states  the  rule  somewhat  differently  (§§  750,  776),  and 
there  are  some  cases  that  support  his  statements  ;  but  the  rule,  as  stated  by  Fry, 
must  be  applicable  to  contracts  that  do  not  look  to  completed  iierformance  within 
a  defined  or  i-easonable  time,  but  contemplate  a  continuous  performance,  extend- 
ing through  an  indefinite  number  of  years,  or  perpetually."  The  relief  jirayed 
for  was  refused  on  other  grounds,  so  that  these  remarks  were  unnecessary  to  the 
decision.  On  another  point  he  says  (p.  357)  :  "There  are  other  objections  to  a 
decree  for  a  sijecific  ]ierformance  in  this  case,  which  are  more  serious.  Such  a 
decree  is  not  a  matter  of  right.  It  rests  in  the  sound  discretion  of  the  coui-t,  and 
generally  will  not  be  made  in  favor  of  a  party  who  luis  himself  been  in  default. 
*  *  *  Applying  these  principles  to  the  case  in  hand,  it  would  appear  that  the 
conduct  of  the  cross-complainant  has  not  been  such  as  to  justify  the  coui-t  in 
decreeing  a  specific  performance  at  his  suit  against  the  Marble  Coini)any.  With- 
out relying  upon  his  alleged  unfounded  claims  set  uj>  from  time  to  time,  (^tc,  etc. ; 
his  unlawful  and  imwarranted  entry  and  ouster  of  the  Marlile  Company  was  such 
an  invasion  of  the  contract  as  leaves  him  no  standing  as  a  complainant  asking  for 
its  specific  performance  in  a  court  of  equity."  Lowry  v.  Butfington,  6  W.  Va.  249, 
255,  per  Haymond,  J.  :  *'  Ai)plications  to  the  coui-t  to  compel  spe(;ific  performance, 
are  addressed  to  its  discretion  ;  but  it  is  not  an  arbitrary  or  capricious  discre- 
tion, but  a  sound,  judicial  discretion,  regulated  by  the  established  principles  of 

53 


50  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

employed,  and  the  judgments  actually  pronounced  in  those  cases. 
Many  of  the  passages  quoted  in  the  foot  note  had  no  relevancy  what- 
ever to  the  matters  in  issue,  or  to  the  decisions  finally  made.     I  shall 

the  court."  This  was  a  mere  dictum,  as  the  relief  was  granted,  and  the  only- 
question  in  the  case  was  one  of  fact,  whether  the  alleged  contract  had  been  made. 
Fish  V.  Lightner,  44  Mo.  2G8,  272,  per  Currier,  J.  :  "  Petitions  for  a  specific  per- 
formance of  contracts  are  addressed  to  the  sound  and  reasonable  discretion  of  the 
coui't,  which  withholds  or  grants  relief  according  to  the  circumstances  of  each 
particular  case,  when  general  rules  and  principles  fail  to  furnish  any  exact 
measure  of  justice  between  the  parties."  Fish  v.  Leser,  69  111.  394.  Defendant, 
a  weak-minded  man,  ignorant  of  business,  just  after  the  great  Chicago  tire,  while 
he  was  much  frightened  thereby,  was  induced,  by  repeated  solicitations  of  a  per- 
son, to  sign  a  writing  authorizing  that  person,  as  his  agent,  to  sell  certain  lots  in 
Chicago  for  $21,000 ;  they  were  worth  $30,000.  and  were  rapidly  increasing  iu 
value  ;  extensive  improvements  were  about  to  be  commenced  on  adjoining  lots, 
which  would  improve  the  value  of  the  property.  All  these  facts  were  well  known 
to  business  men,  but  not  to  defendant,  and  he  was  not  informed  of  them  by  the 
person  who  got  the  authority  to  sell,  who  was  also  agent  for  the  buyers  through- 
out the  whole  transaction.  A  specific  performance  against  the  vendor  was  i-efused. 
The  court,  per  Craig,  J.  (p.  395),  said  :  "  Courts  of  equity  will  not  always  enforce 
the  specific  performance  of  a  contract.  Such  applications  are  addressed  to  the 
sound,  legal  discretion  of  the  court,  and  the  court  must  be  governed,  to  a  gi-eat 
extent,  by  the  facts  of  each  case  as  it  is  presented.  Specific  performance  will  not 
be  decreed  unless  the  agreement  has  been  entered  into  with  proper  fairness,  and 
without  misappi-ehension,  misrepresentation,  or  oppression.  The  contract  must 
be  fail',  equitable,  and  just,  and  the  complainant  should  be  prepared  to  show  that 
it  will  not  be  unjust  or  oppressive  on  the  defendant  to  have  the  contract  enforced." 
The  court  did  not,  in  fact,  decide  this  case  upon  any  discretion,  for  they  subse- 
quently held  that  the  contract  could  be  set  aside  as  fraudulent  against  the  vendor, 
because  his  agent  was  also  the  seci'ct  agent  of  the  purchaser.  Stone  v.  Pratt,  25 
111.  25.  This  was  a  suit  by  an  assignee  of  a  part  of  a  land  contract  against 
the  vendor.  The  court,  j^er  Caton,  Ch.  J.  (p.  34),  said :  "  This  is  a  bill  for 
the  specific  perfoi-mance  of  an  agreement  by  one  who  at  law  has  no  claims 
whatever  upon  the  defendant — at  least  in  his  own  name.  Such  a  bill  is  always 
addressed  to  the  sound  discretion  of  the  court,  which  must  be  governed  by  the 
circumstances  of  each  case  as  it  is  presented.  '  In  Lear  v.  Chouteau,  23  111.  39, 
this  court  said  :  '  In  order  to  induce  a  court  of  equity  to  enforce  specifically  a 
contract,  it  must  be  founded  on  a  good  consideration  ;  it  must  be  reasonable,  fair, 
and  just.  If  its  terms  are  such  as  our  sense  of  justice  revolts  at,  this  court  will 
not  enforce  it,  though  admitted  to  be  binding  at  law.'  It  may  be  added,  that  the 
complainant  must  show  no  oppression  or  unconscionable  advantage,  when  he 
comes  into  a  court  of  conscience  asking  for  a  remedy  beyond  the  letter  of  his 
strict  rights.  He  must  not  ask  for  a  favor  beyond  his  technical  legal  rights  when 
he  bases  his  claim  to  that  favor  upon  a  hard,  oppressive,  technical  advantage. 
He  must  stand  before  the  court  prepared  to  meet  its  scrutiny  without  a  blush, 
relying  upon  the  advocacy  of  a  well-i'egulated  conscience  in  his  favor.  Such 
must  not  only  be  his  own  position,  but  he  must  show  that  it  is  not  unjust  or  oppres- 
sive to  the  defendant  to  compel  him  to  perform  specifically.  Let  us  examine  the 
position  of  these  parties.  "Waiving  the  question  of  the  division  of  the  contract, 
the  complainant,  before  he  could  call  on  the  defendant  to  convey  to  him  this  land, 
54 


DISCRETIONARY  CUAKAVTER    OF  TllE  REMEDY.  51 

attempt,  by  analyzing  these  opinions,  and  by  comparing  thoui  with 
the  facts  to  which  they  relate,  and  with  the  decrees  to  which  they  led, 
to  reach  a  dciinite  statement  of  the  doctrine,  and  to  ascertain  the  pre- 

was  obliyed  to  satisfy  an  obligation  which  secured  to  this  defendant  about  $4,000. 
He  attempts  to  do  this  not  by  paying  him,  or  any  one  else  having  a  right  to  receive 
the  money,  the  actual  amount  due,  or  to  become  due,  on  the  contract,  but  he  pur- 
chases the  contract  at  a  forced  sale  for  1^1,000.  [The  defendant's  interest  in  the  con- 
trac't  ha<i  been  sold  at  a  judicial  sale,  based  upon  some  alleged  clause  of  forfeit- 
ure]. This  is  the  extent  of  his  morit.  The  defendant,  i)y  his  contract  with 
D'NVolf  [the  original  vendee],  was  entitled  to  receive  about  $4,000  before  he  could 
be  asked  even  by  D'Wolf  himself  to  convey  any  portion  of  the  premises.  Now, 
what  has  he  realized  for  this  $4,000  worth  of  land  1  Absolutely  nothing.  His 
claim  or  right  to  recover  the  money  was  sold  (and  upon  the  vahdity  or  ettect  of 
that  sale  we  pass  no  opinion),  to  pay  a  forfeit.  Nothing  more — nothing  for  which 
he  had  received  value.  Now,  all  this  may  have  been  a  strictly  legal  transaction. 
The  defendant,  by  his  own  folly,  may  have  frittered  away  his  legal  rights  to  this 
money  or  to  the  land,  but  it  is  not  such  a  transaction  as  should  induce  a  court  of 
equity  to  throw  down  the  legal  bari-iers  which  surround  the  defendant,  and  com- 
pel him  to  do  more,  for  the  ease  and  benefit  of  the  comjilainant,  than  the  .sti-ict 
rule  of  law  will  give."  This  opinion,  which  was  not  obiter,  but  necessary  to 
the  decision  made,  is  an  admirable  statement  of  the  doctrine,  and  goes  far  towards 
explaining  the  exact  nature  of  the  "  discretion,"  so  often  mentioned,  and  showing 
the  true  grounds  upon  which  it  rests.  Quinn  v.  Roath,  37  Conn.  IG.  Suit  against 
a  vendor  to  compel  a  conveyance.  There  had  been  a  slight  delay  of  the  plaintiff 
in  making  a  payment  stipulated  to  be  made  on  a  certain  day,  and  this  was  relied 
upon  as  a  defense.  The  relief  asked  was  granted.  Opinion  by  Phelps,  J.  (p.  24) : 
"  "Whether  a  si:)ecific  performance  of  a  contract  shall  be  decreed  is,  in  a  great 
measure,  dependant  upon  the  exercise  of  a  Sv)und  judicial  discretion,  not  arbiti-a- 
rily  or  capriciously,  but  reasonal)ly,  according  to  the  circimistances  of  the  pai-tic- 
ular  case.  *  *  *  Every  agreement,  as  to  time,  is  not  of  the  essence  of  the  con- 
tract, and  therefore  every  failure  by  the  petitioner  in  a  literal  performance  does 
not,  of  necessity,  furnish  a  sufficient  defense  against  a  bill  for  a  specific  perform- 
ance ;  and  we  think  no  better  or  safer  general  rule,  on  this  subject,  can  be  pre- 
scribed than  that  the  broken  stipulation  should  be  of  such  a  character  as  to  con- 
stitute a  condition  precedent  to  the  petitioner's  lught  to  enforce  the  contract ;  or 
be  such  as,  on  its  non-fultillment  without  a  reasonable  excuse,  to  render  in  terms 
the  contract  void  ;  or  in  some  other  manner  to  render  it  dearly  ine(iuitable,  under 
circumstances  of  fraud,  mistake,  surpi-ise,  unreasonable  delay,  gross  neglect,  bad 
faith,  or  other  manifest  luiconseientiousness,  that  the  jjctitioner  should  have  a 
decree."  McComas  v>.  Easley,  21  Gratt.  23,  CO,  30,  per  Christian,  J.  :  •'  Every 
bill  foi-  the  s]iecific  performance  of  a  contract  is  an  application  to  the  sound  dis- 
cretion of  the  cdiu't.  It  is  not  a  case  requiring  the  interposition  of  the  court  e.c 
dehito  justitiae,  but  rests  in  their  discretion  upon  all  the  circumstances  of  each  i)ar- 
ticular  case.  *  *  *  Of  course,  the  discretion  to  be  exercised  is  not  an  arbi- 
trary and  capi'icious  one,  depending  upon  the  mere  pleasure  of  the  court ;  but 
one  which  is  to  be  exercised  and  controlled  by  the  established  doctrines  and  set- 
stled  principles  of  equity,  governed  by  the  circumstances  of  each  jiarticular  case. 
And,  indeed,  it  is  not  at  all  in  conflict  with  these  views  to  say  that,  when  a  con- 
tract respecting  i-eal  property  is,  in  its  nature  and  circumstances,  imobjectionable, 
it  iaas  much  a  matter  of  (-oursc  for  courts  of  equity  to  decree  a  sjiecitic  perform- 

55 


52  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

cise  nature  of  the  remedial  right  to  a  specific  performance — or,  in  other 
words,  the  real  meaning  and  limits  of  the  "  discretionary  "  character 
so  conmionly  assigned  to  it.     It  is  abundantly  settled,  at  the  outset, 

ance  of  it,  as  it  is  for  a  coui-t  of  law  to  give  damages  for  the  breach  of  it."  The 
plaintiff  in  this  case  alleged  a  verbal  contract  for  the  sale  of  land  to  him  ;  the 
defendant  set  uji  and  proved  a  quite  different  agreement  covering  the  same  land 
and  other  matters.  Held,  that  the  court  had  the  power  to  specifically  enforce 
the  latter,  and  would  do  so,  provided  the  j-elief  did  not  work  injustice  or  hard- 
ship to  either  party.  Hale  v.  "Wilkinson,  21  Graft.  75.  Suit  against  a  vendor  of 
land;  defense  that  the  price,  by  reason  of  a  change  in  circumstances,  had  become 
inadequate.  Held,  that  inadequacy  is  no  defense  imless  it  is  of  itself  evidence  of 
fraud.  IfiONCURE,  P.  J.,  after  quoting  the  foi-egoing  language  of  the  last  case, 
added,  in  respect  to  the  final  passage  of  the  above  extract  (p.  80) :  "  This  propo- 
sition is  self-evident.  The  law  always  enforces  the  contracts  of  men  where  they 
are  unobjectionable.  The  literal  and  exact  enforcement  of  a  contract  requires  its 
specific  execution,  whatever  may  be  the  subject  of  such  contract.  Generally, 
specific  execution  of  a  contract,  in  regard  to  personality,  will  not  be  decreed, 
but  the  parties  will  be  turned  over  to  their  legal  remedies,  because  they  ai-e  more 
convenient  than  equitable  remedies,  and  damages  generally  afford  ample  and 
satisfactory  compensation.  *  *  *  Land  always  has,  in  the  eye  of  the  law,  a 
peculiar  value,  and  a  contract  for  the  sale  and  purchase  of  it,  if  unobjectionable, 
will,  therefore,  l)e  si^ecifically  executed.  In  no  other  way  can  parties  receive  the 
full  benefit  of  their  contract.  And  no  court,  having  jurisdiction  of  the  subject, 
and  being  properly  applied  to  for  such  relief,  can  withhold  it  but  by  an  act  of 
arbitrary  power."  Cooper  v.  Pena,  21  Cal.  403,  411,  per  Cope,  J.  :  "It  is  a  set- 
tled piinciple,  that  the  specific  pei'formance  of  a  contract  is  not  a  matter  of  course, 
but  rests  in  the  sound  discretion  of  the  court,  upon  a  view  of  all  the  circum- 
stances ;  and  before  the  coui-t  will  act,  it  must  be  satisfied  that  the  contract  is 
reasonable  and  equal  in  its  operation."  Bruck  v.  Tucker,  42  Cal.  346,  353,  per 
Wallace,  J.  :  "It  is  well  settled,  that  an  application  made  to  a  court  of  equity  to 
obtain  relief  of  that  character  [specific  i^erformance]  does  not  proceed  ex  debito 
justitiw,  as  an  action  at  law,  brought  for  the  recovery  of  damages  ujwn  a  breach 
of  such  an  agreement,  but  is  addi-essed  to  the  sound  discretion  of  the  court  to  be 
determined  upon  all  the  circumstances  appearing.  That  the  contract,  concerning 
which  relief  is  sought,  is  one  sufficient  in  point  of  mere  legal  obligation ;  that  it 
is  supported  by  a  valuable  consideration,  paid,  or  agreed  to  be  paid ;  that  it  is 
free  from  fraud,  or  from  such  a  degree  of  imposition  or  surprise  upon  the  defend- 
ant as  would  support  an  application,  on  his  part,  to  set  it  aside  entirely  ;  these, 
'  and  the  like  circumstances,  though  ordinarily  indispensable,  are  yet  far  fi-om 
sufficient,  in  themselves,  as  constituting  a  case  for  invoking  the  relief —  extraordi- 
nary in  its  character —  sometimes  administered  by  the  coui-ts  thi-ough  the  instru- 
mentality of  a  decree  for  specific  performance.  The  agreement  alleged  must  be 
one  which,  in  all  its  features,  appeals  to  the  judicial  discretion  as  being  fit  to  be 
enforced  Mi  sjjecie,  as  having  been  obtained  without  any  intermixture  of  unfair- 
ness. Hence,  if  it  appears  that  the  bargain,  though  obligatory  in  point  of  mere 
law,  and  one  not  to  be  set  aside  in  equity,  is,  nevertheless,  a  hard  bargain,  the 
court  will  not  relieve."  Bogan  v.  Daughdrill,  51  Ala.  312,  314:  "When  a  con- 
ti'act  respecting  i-eal  estate  is  in  writing,  is  certain,  fair  in  all  its  i)arts,  founded 
on  an  adequate  consideration,  and  capable  of  execution,  a  specific  performance 
in  a  court  of  equity  is  as  much  a  matter  of  right  as  damages  for  its  breach,  in  a 
56 


DISCRETIONARY  CHARA<yrKR    OF   THE   REMKDV.  53 

that  the  remody  is  not  "  discretionary,"  in  the  nsual  at'coptation  of 
the  term  ;  it  is  not  given  or  witliheld  at  the  mere  will  and  good  pleas- 
ure of  tlie  judge  ;    nor    does   it   depend    upon    his   own    individual 

court  of  law."  Aston  i\  Rohinson,  4il  Miss.  34S,  351,  per  Si.mkai.i,,  .). :  "The 
jurisdiction  of  a  court  of  equity  to  enforce  speciticaily  a  contract,  tliongli  it  is  said 
to  rest  in  judicial  discretion,  yet  it  is  exercised  acco^-ding-  to  sound  and  tixeil  rules, 
and  within  certain  defined  limits,  but  is  controlled  largely  hy  the  circumstances 
of  the  individual  ciise  (citing  Ash  v.  Daggy,  G  Ind.  2r)',l ;  Grillith  i\  Fi-edei-ick  Co. 
Bk.,  6  Gill.  &  John.  424).  The  requisites,  upon  which  this  ecjuity  arises,  are  :  The 
performance  must  be  necessary  ;  there  must  be  a  valuable  consideration  ;  it  must 
be  practicable  ;  the  agreement  must  be  certain  and  nmtual.  Ordinarily,  it  will 
not  be  exerted  in  i-eference  to  agreements  about  chattels,  because  the  law  esteems 
that  ample  compensation  can  be  made  in  damages  for  a  breach.  The  right  arises 
where  a  contract,  landing  at  law,  hiis  been  infringed,  and  the  rem(>dy  at 
law  by  damages  is  inadecpiate.  The  contract  must  be  fair,  and  not  hard 
and  unconscientious  on  either  party.  Daniel  ?'.  Frazer,  40  Miss.  507." 
Weise's  Appeal,  72  Pa.  St.  351,  354,  per  Thompson,  C.  J.  :  *'  Decrees  in  ecjuity,  for 
specific  execution,  are  not,  like  judgments  at  law,  a  matter  of  right ;  they  are 
within  the  discretion  of  the  chancellor,  and  of  grace.  Miller  v.  Henlan,  1  P.  F. 
Smith,  265  ;  Freetley  v.  Barnhart,  id.  281.  As  a  rule,  whenever  the  equity  of  the 
party,  under  his  contract,  is  not  clear,  or  his  case  is  unconscionable  oi*  ine(iuitable, 
coui-ts  of  equity  refuse  specific  execution,  and  leave  the  party  to  his  action  at  law 
to  recover  damages  for  the  breach  of  the  contract."  This  was  mei-ely  a  dirt  am; 
for  the  case  was  decided  upon  the  single  ground,  that  the  agent,  who  made  the 
contract,  in  the  name  of  the  defendant,  acted  without  any  authority,  so  that  it  was 
void  even  at  law,  Snell  v.  Mitchell,  65  Me.  48,  50,  jier  Waltox,  J.  :  *'  Such  aiipli- 
cation  is  addi*essed  to  the  sound  discretion  of  the  court.  Neither  party  to  a  con- 
ti-act  can  insist,  as  a  matter  of  right,  upon  a  decree  for  its  specific  performance. 
The  courts  of  law  are  always  open  to  him,  and,  ordinarily,  an  action  at  law  fur- 
nishes an  ample  remedy  for  the  breach  of  a  contract ;  and  where  such  is  the  case, 
a  court  of  equity  generally  declines  to  take  jurisdiction.  If  a  contract  for  the  con- 
veyance of  i-eal  estate  is,  in  all  respects,  fair,  and  free  from  ambiguity,  and  there 
are  no  insurmountable  difficulties  in  the  way  of  a  specific  performance,  its  })er- 
formance  will  ordinarily  be  decreed.  On  the  contrary,  if  the  contract  is  uncon- 
scionaV)le,  or  ambiguous,  or  through  fraud,  or  mistake,  or  want  of  skill,  on  the 
part  of  the  draftsman,  does  not  truly  embody  the  agreement  of  the  parties,  or  if, 
for  any  other  reason,  the  court  is  of  opinion,  that  the  contract  is  one  which,  in 
equity  aud  good  conscience,  ought  not  to  be  specifically  enforced,  it  will  decline  to 
interfere,  and  will  leave  the  parties  to  such  redress  as  can  be  obtained  in  an 
action  at  law.  *  *  *  A  court  of  eqiiity  will  never  knowingly  decree  an  impossibil- 
ity ;  it  will  never  knowingly  require  a  party,  under  the  pains  and  penalties  of 
perpetual  imprisonment,  to  do  an  act  which  is  out  of  his  ]iower  to  do."  Blaclv- 
wilder  v.  Loveless,  21  Ala.  371,  374,  per  Chilton,  J.  :  "The  enforcement  of  the 
specific  performance  of  contracts,  in  a  court  of  equity,  is  not  a  matter  of  right  in 
either  party,  but  is  a  matter  of  discretion  in  the  court ;  not,  indeed,  of  arbitrary 
or  capricious  discretion,  dej)endent  upon  the  mere  pleasure  of  the  judge,  V)ut  of 
that  sound  and  reasonable  discretion,  which  governs  itself,  as  far  as  may  be,  by 
general  rules  and  principles;  but,  at  the  same  time,  withholds  or  grants  relief 
according  to  the  circumstances  of  each  particular  case,  where  these  rules  will  not 
fui-nish  any  exact  measure  of  justice  between  the  parties.     The  court  uniformly 

57 


54  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

opinion,  as  to  its  propriety  and  feasibility ;  much  less  is  it  a  matter  of 
favor.  The  statement,  therefore,  found  in  a  recent  Pennsylvania  case, 
that  the  relief  is  "of  g-race,"  is  neither  consistent  with  principle  nor 

refuses  to  decree  a  sjjecific  performance,  except  in  cases  where  such  decree  would 
be  strictly  equitable.  It  rec^uires  much  less  strength  of  case  to  enable  a  defend- 
ant to  resist  a  V)ill  to  perform  a  contract,  than  it  does,  on  the  part  of  the  plaintiff, 
to  maintain  such  bill ;  for,  if  there  be  any  fraud  or  mistake,  or  if  the  bargain  be 
hard  or  unconscionable,  or  if  the  specific  performance  would,  under  all  the  cir- 
cumstances, be  inequitable,  the  chancellor  should  i-efuse  to  decree  the  specific 
execution  of  the  agreement,  and  leave  the  parties  to  their  remedies  at  law.  *  *  *  We 
will  not  say  there  was  any  fraud  or  mistake  in  this  case  ;  but  we  are  satisfied  that 
the  defendant  did  not  deal  with  the  plaintiff  on  equal  terms,  and  that,  by  reason  of 
the  peculiar  condition  in  which  the  defendant  was  f)laced,  the  plaintiff  was 
enabled  to  get  his  bond  for  title  for  a  very  inadeqiiate  consideration,  and  under  the 
coercion  of  the  process  held  in  terrorem  over  him.  Defendant  was  not  in  a 
condition  to  deal  at  arms'  length  with  the  plaintiff,  nor  to  insist  upon  a  fair 
and  equitable  bargain."  Port  Clinton  R.  R.  v.  Cleveland  &  Toledo  R.  R.,  13  Ohio 
St.  544,  549,  per  Gholson,  J.  :  "  The  specific  performance  of  contracts  rests  upon 
the  ground,  that  the  ordinary  remedy  for  its  breach  will  not  afford  adequate 
relief.  In  some  cases,  this  is  so  apparent,  that  a  specific  performance  is  decreed 
as  a  matter  of  course.  Such  is  the  case  of  a  contract  for  the  conveyance  of  real 
estate.  In  such  a  case,  if  the  party  has  not,  by  some  act  or  omission,  precluded 
himself  from  relief,  he  may  be  said  to  he  entitled  to  it  as  a  right.  For,  although 
the  court  is  said  to  have  a  discretion  in  granting  or  refusing  a  specific  perform- 
ance, it  is  not  an  arbitrary  discretion,  but  a  discretion  to  be  regulated  by  prece- 
dent and  established  practice.  It  would,  however,  be  going  to©  far  to  say  that, 
in  all  cases  where  the  ordinary  legal  remedy  would  not  afford  adequate  relief, 
there  is  necessarily  a  right  to  a  specific  performance."  Rogei-s  v.  Saunders,  16 
Me.  92,  97,  per  Shkpley,  J.  :  "It  is  a  matter  of  discretion,  in  the  courts,  whether 
or  not  to  decree  a  specific  performance,  not  dependent,  however,  upon  the  arbi- 
trary pleasure  of  the  judge,  but  regulated  by  general  rules  and  principles. 
"When  the  contract  is  in  writing,  certain,  fair  in  all  its  parts,  is  for  an  adequate 
consideration,  and  is  capable  of  being  performed,  it  is  a  matter  of  course  for  a 
court  of  equity  to  decree  performance.  And  performance  may,  in  a  proper  case. 
be  decreed  when  the  party  has  lost  his  remedy  at  law.  When  its  binding  effi- 
cacy has  been  lost  alone  by  lapse  of  time,  courts  of  equity  are  in  the  habit  of 
relieving,  when  time  is  not  essential  to  the  substance  of  the  contract."  Seymour 
V.  De  Lancey,  6  Johns.  Ch.  222,  224,  225,  per  Kent,  Chan. :  "  It  is  an  application 
to  sound  discretion.  This  has  been  the  uniform  language  of  courts  of  equity.  It 
is  not  a  case  requiring  the  aid  of  the  court  ex  debito  justitiCB.  It  is  a  settled  prin- 
ciple, that  a  specific  performance  of  a  contract  of  sale  is  not  a  matter  of  course, 
but  rests  entirely  in  the  discretion  of  the  court,  upon  a  view  of  all  the  circum- 
stances. A  court  of  equity  must  be  satisfied  that  the  claim  for  a  deed  is  fair  and 
just,  and  reasonable,  and  the  contract  equal  in  all  its  parts,  and  founded  on  an 
adeqate  considei-ation,  before  it  will  interfere  with  this  extraordinary  assistance, 
If  there  be  any  well-founded  objection  on  any  of  these  grounds,  the  pi-actice  of 
the  court  is  to  leave  the  party  to  his  remedy  at  law  for  a  compensation  in  dam- 
ages." The  chancellor  held,  upon  a  review  of  English  authorties,  that  mere 
inadequacy  in  the  price  would  be  a  defense,  since  it  rendered  the  contract  unrea- 
sonable,  unequal,  and  hard.     This  decision  was  reversed  by  the  Court  of  Errors 

58 


DIsrRK'f/u.x.ih'  i    <iiAh'A<'ii':u   OF   I  HE   i;i:mi  ID.  ;>.) 

with  aatli()iity.(l)  Tlie  doci.siuus  iigive,  with  some  vuriatiou  in  tlieir 
laiii,''iiag'e,  but  with  none  in  tlie  nieauiii^",  that  the  discretidu  is  ajiidu-ial 
one,  controlled  and  g-overned  by  tlie  i)i'iiicii)k\s  and  rul(\s  ^^'i  i'(iiiity.(2) 

in  Sejnuoui"  v.  De  Laneey,  3  Cow.  445,  on  the  grotind  that,  nnn-n  iiiiul«!(iuat'y  waa 
not  a  defense  ;  that  it  must  l)e  such  as  to  be  evideni-e  of  fraudi  The  g'eju'ral  doe- 
trine  that  the  remedy  is  discretionaiy,  was  reiterateil  in  suhstantially  the  same 
lanji-uage  as  that  employed  by  the  chancellor.  Ivi  Lamare  ji  Dixon,  L  R  G  H 
L.  414,  423,  Ld.  Chklmsfokd  said  :  "The  exereiseof  the  juin.sdiction  of  e<iuity,  as  to 
the  enforcing-  the  .'^pecitie  jierformance  of  ag-reements,  is  not  a  matter  of  rig-ht  in 
the  ijarty  seeking-  relief,  but  of  discretion  in  the  court;  not  an  ai-bitrary  orcai)i"i- 
cious  discretion,  but  one  to  be  governed,  as  far  as  ]>ossible.  by  lixi-d  i-ulfs  and 
principles.  The  conduct  of  the  party  ajjplying-  for  relief  is  always  an  important 
element  for  consideration."  This  last  sentence  is,  of  cour.s(>,  true  The  tirst  .sen- 
tence, however,  was  wholly  a  dlctuin — a  jnere  i-ecital  of  the  stereot}i>ed  foi-mula, 
wiLh  which  judicial  opinions  concerning-  specific  performance  are  so  often  begun, 
without  any  reference  whatever  to  its  applicability  to  the  decision  which  is  ju-tually 
made.  In  this  case,  the  plaintiff  sought  to  enforce  performance  of  a  contract, 
which  he  had  made,  to  gi\e  defendant  a  lease  of  jiremises  for  a  t<irm  of  yeai-s 
The  court  refused  the  relief,  because  the  plaintiff  had  so  violated  the  terms  of  hia 
own  agreement,  that  he  could  not  even  have  maintained  an  actional  law  ;  so  that 
he  had  no  legal  right  even,  and  the  court  was  not  called  upon  to  exercise  any 
"  discretion  "  in  the  matter.  The  only  point  really  contested  was,  whether  defend- 
ant had,  by  his  acts,  waived  his  objections  to  plaintiffs  defaults,  and  the  court 
held,  as  a  matter  of  fact  and  of  law,  that  there  had  been  no  waiver.  The  propo- 
sition (juoted  is  not,  therefore,  entitled  to  any  aidhorUy  as  pai-t  of  a  decision.  In 
Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  L.  J.  Rolt  (p.  72)  said  :  "  I  think  the  judicial  discre- 
tion which  this  court  clearly  possesses  of  i-efusing  specific  performance,  in  certain 
cases  of  agreements  undoubtedly  valid,  ought  to  l)e  carefully  and  sparingly  exer- 
cised. Contracts  oug-lit  to  be  performed.  To  l)reak  them,  and  to  projiose  com- 
pensation for  the  breach,  by  damages,  is  not  complete  justice.  But  the  discretion 
of  this  court,  as  to  granting  or  refusing  specific  performance,  has,  nevertheless, 
been  wisely  as  well  as  firmly  established."  It  is  evident,  I  think,  that  Lord  Justice 
Rolt  uses  the  word  "  discretion,"  to  signify  the  power  of  the  court  to  refuse  a 
specific  performance,  unless  all  the  equitable  incidents  are  present,  which  create 
an  "equity"  in  the  plaintiff,  and  give  him  a  rig-ht  to  the  e(iuitable  relief.  See, 
also,  Eastman  v.  Plumer,  46  N.  II.  464  ;  Mississippi,  etc.  R.  R.  •».  Cromwell,  1 
Otto,  643  ;  Plummer  v.  Kepler,  26  N.  J.  Eci.  481 ;  Sherman  t).  Wi-ight,  40  N.  Y.  227  ; 
Godwin  v.  Collins,  4  Houst.  28  ;  [3  Del.  Ch.  189  ;]  Phillips  r.  Stanch,  20  Mich.  369; 
Burke  v.  Seeley,  46  Mo.  334;  Crane  v.  De  Camp,  21  N.  J.  Kq.  414;  Merritt  v. 
Brown,  ib.  401 ;  Walker  v.  Hill,  ib.  101 ;  Morganthau  v.  White,  1  Sweenyj  395 1 
Sharps'  Rifie  Man.  Co.  v.  Rowan,  35  Conn.  127 ;  Cuff  v.  Dorland,  55  Barb.  481 ; 
Bowman  v.  Cunningham,  78  111.  48;  Seaman  i\  Van  Rensselaer,  10  Barb.  81; 
Taylor  v.  Williams,  45  Mo.  80  ;  Humbard's  Heirs  \\  Ilumliard,  3  Head,  jOO  ;  Auter 
V.  Miller,  18  Iowa,  405;  Smoot -y.  Rea,  19  Md.  308;  St.  Paul  Divismn  v.  Brown, 
9  Minn.  157.  [The  appellate  court  has  power  to  decide  wliefhei'  the  court  below 
acted  wisely  and  justly,  under  the  paiiicular  circumstances  of  the  case,  in  exer- 
cising the  extraordinary  and  discretionary  jurisdiction  of  granting  or  refusing  the 
specific  performance  of  a  contract.  Leicester  Piano  Co.  v.  Front  Royal,  etc.  Co. 
(C.  C.  A.),  55  Fed.  Rep.  190,  196.  See,  also,  on  the  general  subject,  Pullman 
Palace-Car  Co.  v.  Texas  &  P.  R.  Co.,  4  Woods  C  C.  317 ;  Backus's  Apjieal,  58 
Pa.  St.  186  (discretion  extends  to  awards  as  well  as  to  contracts).  Goodwin  v. 
Collins,  3  Del.  Ch.  189  (affirmed  4  Houst.  28),  for  a  summary  of  the  Ameiican 
law.] 

(1)  Weise's  Appeal,  72  Pa.  St.  351,  354,  per  Thompsox,  C.  J. 

(2)  See  Blackwilder  v.  Loveless,  21  Ala.  371,  374  ;  Port  Clinton  R.  R.  v.  Cleve- 
land &  Toledo  R.  R.,  13  Ohio  St.  544,  549;  Rogers  v.  Saunders.  16  Me.  92,  97; 
McComas  v.  Easley,  21  Gratt.  23.  29,  30;  Aston  v.  Robinson,  49  Mi.ss.  348.  351; 
Quinn  v.  Roath,  37  Conn.  16,  24  ;  Lowry  v.  BuHington,  6  W.  Ya.  249,  255  ;  WiUard 
V.  Tavloe.  8  Wall.  557,  567.  [See,  also.  Moon  v.  Crowder,  72  Ala.  70  ;  Carlisle  tt 
Carlisle.  77  Ala.  339  ;  Bugwell  v.  Bugwell,  72  Ga.  92  ;  Chicago,  B.  &  Q.  R.  R.  V. 
Reno,  113  111.  30;  Wo..(ls  v.  Evans,  113  111.  186;  Ilitfield  v  Willey,  105  III  286; 
Sherman  i\  Willets,  17  Nebr.  478.  J 

59 


56  Sl'EClFIC    rKI,'F()R.MA.\('E    OF   VOm'RACTS. 

If  we  can  ascertain  just  what  tliese  pnncii)les  and  rules  of  equity  are, 
which  thus  govern  and  control  the  exercise  of  tlie  discretion,  we  shall 
have  ascertained  the  exact  nature  and  limits  of  the  discretion  itself. 

Legal  and  equitable  remedies  contrasted. 

ISkc.  37  It  is  very  obvious  that,  in  describing  the  equitable  juris- 
diction, and  characterising  it  as  a  discretionaiy  one,  the  courts  are 
always  contrasting  the  right  to  the  legal  remedy  of  damages  u[)on 
the  breach  of  a  contract,  with  the  right  to  the  equitable  remedy  of 
specific  performance.  If  the  contract  is  valid  and  admits  of  no  legal 
defense  in  law,  the  right  of  the  injured  party  to  the  remedy  at  law  is 
absolute,  and  is  not  affected  by  the  circumstances.  The  agreement 
may  be  unfair  ;  its  benefit  may  be  w^hoUy  on  one  side ;  it  may  be 
the  result  of  unscrupulous  conduct ;  it  may  be  oppressive  to  the  last 
degree  upon  the  defendant,  still  the  plaintiff,  if  he  has  kept  himself 
within  the  strict  rules  of  the  law,  is  entitled  to  recover  the  full  amount 
of  his  legal  damages  upon  a  breach  of  the  contract.  It  is  this  absolute 
nature  of  the  right  to  the  legal  remedy  which  is  meant  by  applying 
to  it  the  phrase  ex  dibito  justitios  in  those  cases  which  describe  the 
equitable  remedy,  by  way  of  contrast,  as  not  being  awarded  ex  debito 
jui<,titi(B.{\)  The  right  to  an  equitable  remedy,  however,  is  never  in 
this  sense  absolute,  and  may,  therefore,  when  compared  wdth  the 
legal  right,  properly  and  to  a  limited  extent,  be  called  discretionary. 
That  is,  in  addition  to  the  facts,  events,  and  relations  which  give  rise 
to  the  certain  and  absolute  legal  right,  there  may  be  other  facts,  cir- 
cumstances, and  incidents  wdiich  determine  the  existance  of  the  equit- 
able right,  which  modify  its  application,  or,  perhaps,  entirely  prevent 
its  exercise.  The  phrase  "  within  the  discretion  of  the  court,"  is, 
therefore,  employed  to  contrast  the  equitable  Avith  the  legal  remedy ; 
within  the  domain  of  equity  jurisdiction  remedies  are  not,  in  any  true 
sense,  discretionary,  but  are  governed  by  the  established  })rinciples 
and  rules  which  constitute  the  oody  of  equity  jurisprudence. 

The  remedy  of  specific  performance  is  governed  by  the  same 
general  principles  and  rules  -which  control  other  equitable 
remedies. 

Sec;.  08.  The  right  to  it  depends  upon  circumstances,  conditions, 
and  incidents,  in  addition  to  the  existence  of  a  valid  contract,  which 

(1)  Seymour  v.  De  Laneey,  6  John  Ch  222,  225  ;  McComas  v.  Easley,  21  Gratt. 
23,  29  ;  Bruck  v.  Tucker,  42  Cal  34(5,  353.  It  must  be  conceded  that  the  phrase, 
as  thus  used,  is  an  unhappy  one.  It  would  seem  that  it  oug-ht  to  desigmate  the 
equitable  remedy  rather  than  the  legal  one.  The  ecpiitalde  remedy  is  demanded 
hy  justice  ;  is  in  accordance  wth  justice  ;  or  is  due  from  consideration  of  justice  ; 
while  the  legal  remedy  is  due  and  is  given  as  a  matter  of  strict  law,  sometimes 
without  regard  to  justice. 

60 


DISCRKTJOiWAKr   VUARAVTER    OF  THE   REMEDY.  57 

equity  regards  as  essential  to  the  administration  of  its  peculiar 
modes  of  relief.  When  all  these  circinustances,  conditions,  und  inci- 
dents exist,  the  right  is  perfect  in  equity,  and  a  s})eciUc  iicrfunnunce 
is  granted  as  a  matter  of  course  within  the  classes  of  agreements  to 
which  the  jurisdiction  extends.  In  several  of  tlie  later  decisions  this 
general  principle  is  cleai  iy  developedyand  it  is  shown  that  the  remedy 
is  only  discretionary,  as  it  depends  on  certain  equitable  conditions, 
and  that  these  being  fulfilled,  it  becomes  as  much  a  matter  of  right  as 
the  legal  relief  of  damages. (1)  These  circumstances,  conditions,  and 
incidents,  as  collected  from  various  cases,  are  the  following :  the  con- 
tract must  be  certain,  unambiguous,  nmtual,  and  upon  a  valuable 
consideration  ;  it  must  be  perfectly  fair  in  all  its  parts ;  free  from  any 
misrepresentation  or  misapprehension,  fraud  or  mistake,  imposition 
or  surprise  ;  not  an  unconscionable  or  hard  bargain  ;  and  its  perform- 
ance not  oppressive  upon  the  defendant ;  finally,  it  must  be  capable 
of  specific  execution  through  a  decree  of  the  court. (2)  An  examina- 
tion of  these  particulars  will  show,  that,  so  far  as  they  differ  from  the 
requisites  to  legal  relief,  they  are  merely  a  statement  in  part  of  the 
general  principles  which  lie  at  the  foundation  of  all  equitable 
remedies. 

Equitable  elements  of  specific  performance. 

Sec.  39.  It  should  be  borne  iu  mind  that  the  object  of  this  analysis 
is  to  point  out  the  features  of  the  equitable  remedial  right  which  dis- 
tinguishes it  from  the  legal ;  and  to  show  what  conditions  are  essential, 
in  addition  to  the  legal  validity  of  an  agreement,  in  order  that  the 
equitable  remedy  may  be  obtained.  1.  In  the  first  place,  the  ele- 
ments of  certainty,  nnambiguity,  and  a  valuable  consideration,  are 
substantially  the  same,  taking  into  account  the  difterence  in  the  kinds 
of  relief  conferred,  as  the  ordinary  prerequisites  to  the  recovery  of  a 
Judgment  at  law  for  damages.  In  an  action  at  law  the  agreement 
must  be  so  certain  and  free  from  ambiguity,  that  the  court  can  con- 
strue it  and  determine  the  plaintiff's  right  to  recover.  In  the  suit  for 
a  specific  performance  no  different  kind  of  certainty  is  required ;  the 

(1)  See  Williard  v.  Tayloe,  8  Wall,  557,  .'>05-5t57 ;  Stone  v.  Pratt,  25  111.  2.'),  34  ; 
Quinn  v.  Roatli,  87  Conn.  1(3,  24  ;  Brack  v.  Tucker,  42  Cal.  34G,  353 ;  Siiell  v. 
Mitchell,  05  Me.  48,  50;  Port  Clinton  R.  R.  v.  Cleveland  &  T.  R.  R..  13  Ohio  St. 
544,  549  ;  Snioot  v.  Rea,  19  Md.  308 ;  St.  Paul  Division  v.  BrovTi,  9  Miini.  157 : 
[Parker  v.  Wray,  45  Fed.  Rep.  71(3,  721  ;  Tiffin  v.  Shawan,  43  Ohio  St.  178  ;  Barr.-tt 
V.  Forney,  82  Va.  209.] 

(2)  Seymour  v.  De  Lancey,  0  John.  Ch.  222,  224,  225;  Blackwilder  v.  Lovelesis, 
21  Ala.  371,  374  ;  Snell  v.  Mitchell.  05  Me.  48,  50;  McComas  x\  Easley,  21  Gratt. 
23,  29,  30 ;  Bruck  v.  Tucker,  42  Cal.  346,  353 ;  Bo^'an  v.  Daujjhdrill.  51  Ala.  312, 
314  ;  Aston  v.  Robinson,  49  Miss.  348;  Quinn  v.  Roath,  27  Conn.  1(3,  21 ;  Stone  v. 
Pratt,  25  III.  25,  34  ;  Fish  v.  Leser,  GO  111.  804.  305  ;  Marble  Co.  v.  Ripley,  10  Wall. 
339,  357  ;  Willard  v.  Tayloe,  8  Wall.  557,  5(;(">,  5(37  ;  Ro<rers  v.  Saunders,'lO  Me.  92, 
97;  [Watkins  v.  Turner,  34  Ai-k.  003;  Taylor  u.  Atwood,  47  Conn.  498.] 

61 


68  SFKCIFIC   riiUFOUMANCE    OF   CONTRACTS. 

only  possible  ditierence  is  one  of  degree,  which  results  from  the  par- 
ticular aud  special  nature  of  the  relief  to  be  granted.  As  the  remedy 
consists  in  carrying  into  execution  the  very  terms  of  the  contract,  all 
those  terms  nuist  be  sullicienily  precise  and  unambiguous  for  the 
court  to  enforce  the  whole  contract  and  secure  ail  the  rights  of  both 
the  parties.  There  is,  therefore,  no  extraordinary  quality  in  the  cer- 
tainty demanded  by  a  court  of  equity ;  in  both  jurisdictions  the  lan- 
guage in  which  the  parties  have  expressed  their  agreement,  must 
enable  the  court  to  ascertain  their  rights,  and  to  award  the  appro- 
priate relief.  The  requisite  of  a  valuable  consideration  is  the  same 
in  both  judicial  proceedings,  with  the  single  difference  that  equity 
does  not  attribute  the  common-law  efficacy  to  a  seal,  nor  allow  it  to 
take  the  place  of  direct  proof.  2.  The  second  element — of  mutuality 
— is  partly  an  expression  of  the  common-law  rule  that  a  contract  must 
be  the  assent  of  both  the  parties  and  be  binding  upon  both,  and  is 
partly  referable  to  the  equitable  principle  which  will  be  next  men- 
tioned. A  purely  unilateral  promise,  without  any  acceptance  or  assent 
by  the  other  party,  cannot  be  enforced  at  law ;  and  if  the  agreement 
is  still  entirely  executory  no  action  upon  it  may,  in  general,  be  main- 
tained by  either  party.  AVhatever  force  and  effect  the  requirement 
of  mutuality  possesses  beyond  this  legal  doctrine,  results  from  the 
principle  just  alluded  to,  and  which  is  stated  at  large  in  the  following 
paragraph  :  It  it  plain  that  the  conditions  for  administering  the  equit- 
able relief,  as  far  as  examined,  have  no  special  or  peculiar  character, 
but  are  substantially  identical  with  those  which  permit  the  recovery 
of  a  legal  judgment,  somewhat  modified  in  degree  to  correspond  with 
the  different  kind  of  remedy. 

Sec.  40.  3.  The  third,  and  by  far  the  most  important,  element  of 
fairness  and  equality  in  the  terms  of  the  contract,  and  in  its  opera- 
tion upon  the  defendant,  in  wiiatever  form  and  with  whatever  variety 
of  detail  it  be  expressed,  is  simply  an  application  of  the  grand  and 
far-reaching  principle  that  he  who  seeks  equity  must  do  equity.  From 
this  fruitful  doctrine  is  derived  a  large  part  of  the  remedial  system 
administered  by  courts  of  equity.  When  an  agi'eement  is  tainted 
with  fraud,  mistake,  duress,  or  any  other  analogous  defect  which 
constitutes  a  defense  in  bar  at  law,  or  furnishes  sufficient  grounds  for 
setting  it  aside  in  equity,  there  is  in  truth  no  binding  contract,  and 
in  this  respect  both  jurisdictions  are  governed  by  the  same  regula- 
tions. The  gieat  and  most  beneficial  principle,  to  which  I  have 
referred,  extends  far  beyond  these  features  which  affect  the  validity 
and  very  existence  of  agreements ;  it  applies  to  contracts  which  are 
62 


DISCRETIONARY  CHARACTER    OF  THE  REMEDY.  59 

valid,  and  which  confessedly  create  legal  obligations ;  it  is  developed 
in  its  practical  operation,  so  as  to  resist  and  counteract  every  possible 
circumstance  and  incident  of  unfairness,  inequality,  and  inequity. 
The  doctrine  that  he  who  comes  into  the  coiu't  seeking  equity — that 
is,  seeking  to  obtain  an  equitable  remedy — must  himself  do  equity, 
means  not  only  that  the  complaining  'party  must  stand  in  conscien- 
tious relations  towards  his  adversary,  and  that  the  transaction — be  it 
a  contract  or  not — from  which  his  claim  arises,  must  be  fair  and  just 
in  its  terms,  but  also  that  the  relief  itself  must  not  be  oppressive  or 
hard  upon  the  defendant,  and  must  be  so  modified  and  shaped  as  to 
recognize,  protect,  and  enforce  the  latter's  rights  arising  from  the  same 
subject-matter,  as  well  as  those  inhering  in  the  plaintifl".  It  is  by 
virtue  of  this  principle  that  the  specific  performance  of  a  contract  will 
be  refused  when  the  plaintiff  has  obtained  the  agreement  by  sharp  and 
unscrupulous  practices,  by  oven-eaching,  by  concealment  of  important 
facts,  by  trickery,  by  taking  undue  advantage  of  his  position,  or  by 
any  other  means  which  are  unconscientious  ;  and  when  the  contract 
itself  is  unfair,  one-sided,  unconscionable,  or  affected  by  any  other  such 
inequitable  feature,  and  where  the  specific  enforcement  would  be 
oppressive  or  harsh  upon  the  defendant,  or  would  prevent  the  enjoy- 
ment of  his  own  rights,  or  would  in  any  other  manner  work  injustice. 
The  requisite  of  mutuality  is  obviously  involved  in  certain  phases  of 
this  principle.  Unless  the  contract  and  the  remedy  were  mutual, 
they  would  be  one-sided,  unfair,  burdensome  upon  the  defendant  with- 
out affording  him  an  opportunity  for  any  corresponding  benefit. 

Sec.  41.  I  shall  illustrate  the  foregoing  proposition,  by  showing 
how  the  general  language  of  judicial  opinions  should  be  limited  by 
the  facts,  and  how  the  decisions  actually  made  have  been  applica- 
tions, under  one  form  or  another,  of  this  equitable  principle.  By  a 
contract,  made  in  1854,  a  lessee  acquired  the  right  to  purchase  the 
premises,  and  to  receive  a  conveyance  thereof,  at  the  expiration  of  his 
ten  years'  term,  for  a  specified  price.  The  price  was  adequate,  the 
agreement  was,  in  every  way,  fair,  and  the  purchaser  acted  wit\ 
perfect  uprightness  in  the  whole  transaction.  At  the  time  for  execu- 
tion, the  legal-tender  notes  had  been  issued,  and  were  much  depre- 
ciated in  comparison  with  coin.  The  purchaser  offered  the  ])vice  in 
these  notes,  but  the  vendor  refused  to  complete.  On  a  bill  for  a  spe- 
cific performance,  the  relief  was  refused,  unless  the  pl^intitt"  would 
pay  the  purchase-money  in  gold  coin.  In  this  case,  to  compel  rae 
defendant  to  convey  his  property,  and  to  accept  a  depreciated  cur* 
rency,  which  was  not  contemplated  when  the   bargain  -was  madd^ 

63 


60  SPECIFIC  PERFORMANCE   OF  CONTRACi'H. 

would  have  been  harsh  and  unjust  toward  him,  and  the  plamcif!'  was, 
therefore,  required  to  do  equity  by  accepting  a  modified  form  of 
relief,  which  recognized  and  protected  the  rights  of  the  defendant. (1) 
In  another  case,  the  conduct  of  the  complainant,  in  setting  up 
unfounded  claims,  from  time  to  time,  under  the  contract,  and  espe- 
cially his  unlawful,  unwarranted,  and  clandestine  interference  with 
the  defendant,  and  attempt  to  deprive  it  of  all  its  rights  and  interests 
under  the  contract,  were  held  to  eave  him  no  standing  as  a  com- 
plainant asking  for  its  specific  performance.  Here,  the  plaintiff's 
own  acts,  done  under  pretense  of  carrying  out  the  agreement,  were 
so  tricky,  unfair,  and  oppressive,  his  whole  conduct  had  been  so 
inequitable,  that  he  could  not  claim  an  equitable  remedy.  (2)  Again, 
while  the  same  contract  was  binding  upon  the  defendant  indefinitely, 
the  plaintiff  might,  at  any  time,  abandon  it,  by  giving  a  notice.  The 
lack  of  mutuality  here  is  objectionable,  because  it  makes  the  bargain 
one-sided ;  all  advantage  is  on  the  plaintiff's  part,  and  he  could  not 
do  equity  while  he  thus,  practically,  deprived  the  defendant  of  apy 
remedy  against  himself.  (3) 

Sec.  42.  By  a  contract  between  two  partners,  the  defendant  agreed 
to  convey  to  the  plaintiff  certain  land,  used  in  carrying  on  the  busi- 
ness, when  he  had  been  paid  the  price  out  of  the  firm  profits  over 
and  above  his  own  share.  A  suit  for  a  specific  performance  was  dis- 
missed, because  the  plaintiff  failed  to  exhibit  any  account  of  the 
business  which  had  been  carried  on  by  himself  alone,  or  to  show,  in. 
any  manner,  that  the  defendant  had  received  the  purchase-money. 
Although  the  court  repeated  the  usual  formula  concerning  the  "  dis- 
cretionary" nature  of  the  relief,  the  decision  did  not  involve  any 
such  question,  nor  turn  upon  the  equitable  principle  now  under  dis' 
cussion ;  it  was  simply  a  case  of  non-performance,  by  the  plaintiff, 
of  the  term  on  his  part,  which  was  a  condition  precedent  to  any 
recovery  at  law  or  in  equity. (4)  The  owner  of  city  lots  in  Chicago,  a 
weak-minded  man,  ignorant  of  business  and  of  their  value*  was 
induced,  during  the  excitement  just  after  the  great  fire,  to  agree  to 
sell  them  for  §21,000.  They  were  worth,  at  the  time,  at  least  $30,000, 
and  were  rapidly  increasing  in  value.  Persons  of  large  property  had 
just  made  arrangements  to  build  extensively  upon  the  adjoining  lots, 
which  would  have  largely  added  to  the  value  of  the  property.  All 
these  facts  were  well  known  to  business  men  generally,  but  were  not 
known  to  the  vendor,  and  were  not  told  to  him  before  the  agreement 

(1)  "Willard  v.  Tayloe,  8  Wall.  557,  5(55.  (8)  lb.  359. 

(2)  Marble  Co.  v.  Ripley,  lOWall,  889, 3.57.         (4)  Fish  v.  Lightner,  ■<*-  -■'-.  2'"-8.  2'U- 

64 


DISCRETIONARY   CHARACTER    OF  THE  REMEDY.  61 

was  signed.  The  person  who  procured  him  to  sell,  and  was  niach;  his 
agexit  to  effect  the  sale,  appeared  to  be  also  acting  on  behalf  of  the 
purchasers,  and  this  fact  was  concealed.  A  specitic  performance, 
prayed  for  by  the  purchaser,  was  refused.  Even  granting  that  the 
fraud,  false-representation  and  concealment,  were  not  sufficient  to 
constitute  a  defense  at  law,  or  groun(|s  for  a  cancellation  in  equity, 
still  the  agreement  was  procured  by  trickery,  overreaching,  and 
taking  advantage  of  the  vendor's  ignorance  ;  the  parties  did  not  stand 
upon  an  eipial  footing  in  respect  to  knowledge  ;  and  it  was  unfair, 
one-sided,  and  unjust  in  its  terms.  To  compel  a  conveyance,  under 
these  circumstances,  would  have  been  ine(iuitable,  and  even  oppres- 
sive. The  plaintiff',  instead  of  "  doing  equity,''  was  asking  the  court 
to  enforce  a  bargain  w'hich  wanted  little  of  being  literally  fraudu- 
lent.(1)  The  owner  of  land  agreed  to  sell  it  for  $4,000,  and  a  part  of 
the  purchaser's  interest  was  assigned  to  the  plaintiff.  The  original 
contract  of  sale  contained  further  stipulations,  on  the  part  of  the 
vendor,  and  a  clause,  by  virtue  of  which  all  his  interest,  under  the 
agreement,  became  liable,  in  case  of  his  default,  to  a  forfeiture.  The 
vendor  made  default  in  respect  to  some  of  these  provisions,  where- 
upon all  his  interest  was  forfeited,  in  some  judicial  proceeding,  and 
sold  to  the  plaintiff'  for  a  small  sum,  none  of  which  was  received  by 
the  vendor.  The  plaintiff,  being  assignee  of  a  part  of  the  vendee's 
interest,  and  having  thus  become  clothed  wdth  the  vendor's  interest, 
brought  a.  suit  for  a  specific  performance,  w'hich  was  refused,  on  the 
ground  that  defendant  had  received  no  compensation  w'hatever  for 

(1)  Fish  ?).  Lesser,  69  111.  394,  395.  The  i-ecent  case  of  Falck  v.  Gray,  4  Drew. 
651,  before  Kindersley,  V.  C,  was  quite  similar.  The  defendant,  an  elderly 
woman,  being  ignorant  of  their  real  worth,  had  agreed  to  sell  two  very  valuable 
jars  —  articles  of  iJer^?*  —  to  the  plaintiff,  who  knew  their  nature  and  peculiar 
value.  Although  there  was  no  actual  fraud,  yet,  as  the  parties  did  not  make 
their  contract  upon  an  etjual  footing,  a  specific  performance  was  refused.  See, 
also,  Torrance  v.  Bolton,  L.  R.,  8  Ch.  118.  In  suit  by  vendor,  when  the  descrip- 
tion is  misleading,  the  onus  is  on  him  to  show  that  the  defendant  was  not  misled. 
Actual  fraud  not  necessai-y,  even,  to  set  aside  a  contract  for  sale  of  land  ;  en(.ugii 
that  it  is  unconscidnt'wiis.  Philliiis  v.  Homfray,  L.  R.,  6  Ch.  770;  suit  by  a  i)ur- 
chaser ;  a  specific  performance  refused  because  the  plaintiff  hiui  concealed  a 
material  fact  relating  to  the  land,  viz.,  his  own  acts  in  digging  coal  upon  the 
land,  which  was  mining  land.  Even  though  there  had  been  no  undervaluation  in 
the  price  agi-eed  to  be  paid,  i.  e.,  the  price  was  fair,  on  the  assumption  that  all 
the  coal  was  left  in  situ.  "Wycombe  Ry.  Co.  v.  Downington  Hospital,  L.  R.,  1  C"h. 
268  (effect  of  mutual  mistake  in  undei-standing  the  agreement) ;  Mortimer  ?'.  Bell, 
L.  R.,  1  Ch.  10  (effect  of  "puffers"  at  auction  sale);  Gilliatt  v.  (iilliatt,  L.  R.,  9 
Eq.  60  (puffers  at  auction  sale) ;  Baskcomb  v.  Beckwith,  L.  R  ,  8  E(p  lUO  (mistake, 
misleading  ileception).  [See,  also,  Pinner  v.  Sharp,  23  N.  .J.  Ei|.  274  ;  Ely  v.  Per- 
rino,  2  N.  .J.  Va[.  396  ;  Brady's  Ajipeal,  66  Pa.  St.  277  (undue  infiuence) ;  Carlisle; 
■J).  Carlisle,  77  Ala.  339  (estrangement  between  son  and  mother,  whereby  they 
could  not  live  hajipily  together,  ground  for  exercise  of  discretion).] 

65 


62  SPECIFIC   PERFORMANCE    OF  CONTRACTS. 

his  land,  and  the  decree,  under  the  circumstances,  would  be  harsh  and 
oppressive.  From  the  peculiar  terms  of  the  contract,  and  the  subse- 
quent proceedings,  the  i)laintiff  had  obtained  an  unconscionable 
advantage,  and  was  seeking  to  obtain  title  to  a  valuable  piece  of  land, 
for  which  he  had  paid  but  little,  and  for  which  the  owner  had  been 
paid  absolutely  nothing.(l)  The  defendant,  being  in  possession  of  a 
tract  of  land,  worth  several  hundred  dollars,  under  a  claim  of  title, 
the  plaintiff  instituted  proceedings  against  him,  under  the  statute 
concerning  forcible  entry  and  detainer,  in  which  a  question  of  title 
is  not  determined,  which  resulted  in  a  judgment  and  warrant  of  dis- 
possession. While  the  plaintiff  held  the  process  for  removal,  the 
defendant,  who  had  growing  crops  upon  the  land,  entered  into  an 
agreement  whereby,  in  consideration  of  §30,  he  promised  to  give  up 
possession  and  to  execute  a  deed  of  conveyance  at  the  end  of  a  year. 
This  contract  the  court  refused  to  specifically  enforce,  because, 
although  there  was  no  active  fraud  or  mistake,  the  parties  did  not 
deal  on  equal  terms;  the  plaintiff,  with  his  judgment  and  process  of 
dispossession,  occupied  a  position  of  unfair  advantage,  whereby  he 
secured  the  contract  for  a  very  inadequate  consideration,  while  the 
defendant  w^as  not  in  a  situation  to  insist  upon  fair  and  equal 
terms.(2)  Where  a  specific  performance  has  been  refused,  on  the 
ground  of  a  mere  inadequacy  of  price,  the  real  objection  was  to  the 
unfairness  and  inequality  of  the  agreement,  and  the  injustice  of  com- 
pelling the  owner  to  convey  his  land  for  a  sum  much  less  than  its 
value.  (3) 

Sec.  43.  These  cases,  which  are  simply  taken  as  examples,  show 
that  the  so-called  "discretionary  power"  of  the  court  to  grant  or 
refuse  a  specific  performance,  so  far  as  its  exercise  depends  upon  the 
good  conduct  and  conscientiousness  of  the  plaintiff,  and  upon  the 
elements  of  fairness,  equality,  justice,  mutuality,  and  the  like,  in  the 
agreement,  and  upon  the  absence  of  harshness  in  the  relief  towards 
the  defendant,  is  an  application  to  this  particular  kind  of  remedy 
of  the  broad  and  fundamental  principle :  "He  who  seeks  equity- 
must  do  equity."  The  same  principle  is  implicitly  contained  in  the 
doctrine  that  equity,  with  equal  care,  recognizes,  protects  and  en- 
forces the  rights  of  both  plaintiff  and  defendant  in  the  same  decree,  and 

(1)  Stone  V.  Pratt,  25  111.  25,  34.  The  opinion,  quoted  mider  §  35,  is  an  admir- 
able statement  of  tlie  true  equity  doctrine.  See,  also,  Bruck  v.  Tucker,  42  Cal. 
34(5,  353. 

(2)  Blackwilder  v.  Loveless,  21  Ala.  371. 

(3)  Seymour  v.  De  Lancey,  6  John.  Ch.  222,  224. 

m 


DISCRETIONARY  CHARACTER    OF  THE  REMEDV.  63 

"that  an  equitable  remedial  right  does  not,  in  general,  arise  I'roni  any 
£»jecial  facts  of  one  transaction  separated  from  others,  but  depends 
npon,  and  is  modiiied  by,  all  the  circumstances  and  incidents  which, 
taken  together,  constitute  the  subject-matter  of  a  suit,  and  determine 
the  relations  of  its  parties. 

Sec.  44.  4.  Another  special  rule,  which  applies  to  a  certain  chusa 
of  cases,  has,  perhaps,  the  appearance  of  being  purely  discretionary; 
but  it  will  be  found,  upon  closer  examination,  to  dei)end  upon  tlie  same 
general  princi})le  of  equity.  I  refer  to  the  settled  doctrine  that  in 
suits  for  a  specific  performance,  brought  by  a  vendor  of  land,  the 
purchaser  will  not  be  forced  to  complete  the  contract  and  accept  a 
conveyance,  \vhen  the  title  is  so  doubtful  that  he  might  be  exposed 
to  litigation  from  an  adverse  claimant,  or  to  a  loss  of  his  purchase, 
even  though  the  court  does  not  pass  upon  the  question  of  title  and 
definitively  pronounce  it  to  be  bad.  The  mere  fact  that  the  title  is, 
fairly  and  reasonably  considered,  a  doubtful  one,  prevents  tlie  court 
from  forcing  its  acceptance  by  an  unwilling  vendee. (1)  The  real 
nature  of  this  special  rule  is  plain,  upon  an  examination  of  the  reasons 
upon  which  it  rests.  If  it  clearly  appears  that  the  vendor  has  no  such 
title  at  all  as  he  has  undertaken  to  convey,  a  specific  performance  is, 
of  course,  refused,  since  it  would  be  a  monstrous  wrong  to  force  the 
purchaser  to  pay  the  price  and  accept  a  conveyance  when  he  docs  not 
thereby  obtain  the  estate  for  w'hich  he  contracted.  Carrying  this 
notion  one  step  further;  if  a  reasonable  doubt  is  thrown  by  the 
evidence  upon  the  vendor  s  title,  and  it  is  thus  rendered  reasonably 
probable  that  the  purchaser  would  lose  all  benefit  of  his  bargain,  or 
become  involved  in  unlooked-for  expenses,  the  contract  itself  would 
plainly  be  one-sided  and  unconscientious,  and  its  enforcement  would 
be  unjust  and  oppressive.  It  is  obvious,  therefore,  that  the  rule,  under 
consideration,  does  not  require  the  exercise  of  any  judicial  discretion; 
the  only  apparent  discretionary  element  consists  in  the  decision  for 
each  case  whether  there  is  a  reasonable  doubt ;  but  this  decision  is  no 
more  discretionary  than  that  of  many  otlier  matters  of  fact  depending 
upon  the  weighing  of  probabilities.  The  court  decides,  with  all  the 
certainty  which  the  nature  of  the  question  and  of  the  evidence  will 
Dermit,  that  a  reasonable  doubt  exists  as  to  the  vendor's  title,  and 
Jiaving  reached  this  condition  of  fad  ^  it  applies,  not  as  a  matter  of  dis- 
cretion, but  as  a  matter  of  right  belonging  to  the  defendant,  the 

(1)  This  rule  is  simply  stated  here  without  discussion.  It  will  be  found  treated 
at  length,  and  ine  cases  involving  it  cited,  in  a  subsequent  section,  aiz.,  chap.  2. 
Sect.  11.  g7 


64  SPECIFIC  FERFOKMAyCE   OF  CONTRACTS. 

principle,  that  he  who  seeks  equity  must  do  equity,  and  refuses  a 
remedy  which  would  be  one-sided,  unfair,  and  even  oppressive. 

Sec.  45.  5.  Finally,  the  requisite  that  the  contract  must  be  one 
capable  of  specific  enforcement  by  a  decree  of  the  court,  has  no  con- 
nection whatever  with  any  discretion  to  do  exercised  in  granting  or 
withholding  such  decree.  The  want  of  power  to  specifically  enforce 
may  consist  in  a  physical  or  legal  inability  of  the  defendant  to  per' 
form  what  is  ordered,  resulting  from  his  having  parted  with  all 
interest  in,  or  control  over,  the  subject-matter,  or  from  some  other 
efficient  cause ;  or  it  may  inhere  in  the  very  terms  of  the  contract 
itself,  which  are  of  such  an  intricate,  various,  personal,  or  special 
nature,  that  the  court  cannot,  by  any  of  its  administrative  means  and 
methods,  superintend  and  compel  the  execution.  In  either  case  the 
defect  is  absolute,  and  resides  in  the  necessary  imperfection  of  all 
judicial  machinery.  The  difficulty  does  not  lie  in  the  pronouncing  a 
decree  which  shall  sufficiently  describe  and  command  all  the  required 
acts,  but  in  carrying  that  decree  into  operation.  No  tribunal,  though 
possessing  the  powers  and  methods  of  chancery,  can  compel  a  defend- 
ant to  convey  a  good  title  to  the  plaintiff,  w^hen  he  has  already  con- 
veyed the  land  to  another  and  bona  fide  purchaser ;  or  can  compel  a 
prima  donna  to  perform  at  the  opera  with  all  her  skill  and  ability ; 
or  can  compel  a  contractor  to  construct  an  extensive  line  of  railway 
according  to  the  specifications  of  his  agreement.  The  requirement, 
therefore,  that  the  contract  must  be  one  capable  of  specific  enforce- 
ment does  not  involve  any  element  of  discretion,  does  not  result  from 
any  discretionary  nature  of  the  jurisdiction,  and  does  not  render  the 
remedy  itself  discretionary.  Courts  of  law  cannot  compel  the  per- 
formance of  any  contract  except  by  a  pecuniary  judgment;  courts  of 
equity  are  able  to  specifically  execute  many  classes  of  agreements ; 
but  there  are  species  of  contracts  the  specific  performance  of  whicL 
cannot  be  enforced  by  any  tribunals. (1) 

Sec.  46.  The  conclusion  reached  by  the  foregoing  discussion  is,  I 
think,  equally  obvious  and  certain.  The  language  which  describes 
the  remedy  of  specific  performance  as  depending  upon  an  exercise  of 
discretion — even  of  judicial  discretion — unless  taken  with  certain 
limitations  and  interpreted  in  a  particular  manner,  is  misleading  ;  it 
is  a  misconception  which  represents  the  granting  of  this  relief  as  in  any 
sense  a  matter  of  grace,  or  depending  upon  the  favor  of  the  court. 

(1)  For  a  full  discussion  of  the  doctrine  that  specific  performance,  must  Vift- 
practicable,  see  chap.  2,  Sects.  17,  18. 

68 


NOT   GRANTED     WHEN   LFAiAl,    llEMEDV   IS   Sri- ITCI EXT.  (55 

Courts  of  equity  do  not  sit,  any  more  than  courts  of  law,  to  distriliute 
favors  or  acts  of  grace  to  their  suitors;  their  judicial  function  consists 
in  the  protection  of  rig"lits  and  tlie  enforcement  of  duties  by  niears  (if 
the  remedies  which  they  administer.  The  riglit  to  this  }»arti(iil;ir 
remedy,  being  e<iuitable,  involves  a  variety  of  circumstances,  inci- 
dents, and  relations  which  may  prombte,  modify,  impede,  or  prevent 
its  use,  and  one  of  the  most  important  of  these  circumstances  consists 
in  the  fact  that  a  denial  of  the  relief  does  not,  in  general,  leave  a 
party  without  his  legal  remedy.  Where  all  tlie  prosier  conditions  are 
present,  tlie  remedial  right  is  as  perfect',  certain,  and  absolute  as  the 
nature  of  the  remedy  itself  will  permit.  Many  of  the  jiKlicinl  o\)\n- 
ions  state  the  doctrine  in  this  manner. (1)  In  determining  a  particu- 
lar case,  after  it  is  ascertained  that  the  contract  is  legally  valid,  the 
question  of  granting  a  specitie  performance  often  turns  u} ion  collateral 
incidents,  more  or  less  numerous,  which  affect  the  ecpiitable  jurisdic- 
tion. The  decision  of  these  matters — for  example,  whether  the  con- 
duct of  the  plaintiff  has  been  conscientious  ;  whether  the  agreement 
itself  is  fair,  equal,  reasonable  ;  whether  its  enforcement  specifically 
will  be  just  toward  the  defendant,  and  the  like — as  it  requires  the 
examination  of  luimerous  special  circumstances,  and  is  controlled  by 
no  definite  rule,  may  seem,  upon  a  superficial  observation,  to  be 
merely  an  exercise  of  judicial  discretion.  All  these  collateral  fea- 
tures of  the  case  are,  however,  questions  of  fact  to  be  decided  upon 
the  evidence  ;  and  when  they  have  been  thus  established,  the  princi- 
ples of  equity  come  into  operation,  und  pronounce  with  certainty  and 
absoluteness  whether  the  remedy  shall  be  granted  or  withheld. 


SECTION      III, 

Will  not  he  granted  when  lite  h'f/nl  n-inedy  /.<?  sufficient. 
Contracts  concerning  chattels. 

SECTIO^'  47.  The  description  of  the  general  nature  of  specific  ]M^r- 
formance,  and  of  the  e(iuitablo  right  to  it,  will  be  completed  by  a 
brief  discussion  of  the  jtriiiciple  that  it  cannot  be  granted  whiMi  ihe 
legal  remedy  of  damages  is  suflicient — that  is,  practical)le  and  lule- 
•quate;  which  is  the  converse  of  the  doctriiu^  (hn-eloped  in  .Sect ion  1 

(1)  See  McConicas  v.  EjuOey.  21  finitt.  L>:5.  :5() ;  Hal.-  i\  Wilkinson,  l'I  (iiait.  7."., 
80;  Boyan  v.  Daughdrill,  'A  Al.i.  312,  ;{I4;  Sndl  r.  Mitchell,  c:,  .Mr.  -IS.  .".O ; 
Rog-crs  V.  Saunders.  10  Me.  92.07;  Port  ("liiitoii  M.  R.  v.  (MevoJan.l  \-  Toledo 
R.  R.  13  Ohio  St.  544,  549. 

69 


66  SPECIFIC    I'EnfORMAyCK    OF   CONTRACTS. 

of  this  cliapter.(l)  It  is  tlie  fiuulaiueiital  ja-inciple  regulating  the 
exercise  of  this  equitable  jurisdiction,  tliat  wlienever  the  legal  remedy 
of  damages  is  sufiicient,  equity  Avill  not  interfere,  and  the  specific 
performance  will  be  refused;  and  this  is  always  the  case  when  the 
contract  is  satisfied  by  a  payment  of  money.  This  rule  has  a  wdde 
application  to  a  great  variety  of  agreements. (2)  For  this  reason  con- 
tracts concerning  goods,  wares,  and  merchandise,  and  other  ordinary 
chattels,  or  public  and  other  stocks  or  securities,  which  have  a  market 
value  and  sale,  are  not  specifically  executed. (15) 

8ec.  48.  Many  of  the  ordinary  classes  of  contracts,  for  which  the 
legal  remedy  is  sufiicient,  have  been  mentioned  in  Section  I,  and  need 
not  be  repeated  here.  In  addition  to  these,  the  following  cases  have 
been  decided.  Where  the  rights  of  the  party,  plaintiff,  under  a  con- 
tract, will  be  fully  satisfied  by  an  account  of  profits  and  a  payment 
of  the  sum  found  due  thereby,  and  there  is  no  obstacle  to  a  recovery 
of  such  amount  at  law,  a  suit  for  a  specific  performance  cannot  be 
maintained. (4)     Since  the  breach  can  always  be  fully  compensated  by 

(1)  [For  the  jurisdiction  of  the  courts  of  N<"\v  Hampshire,  Massachusetts  and 
Maine,  see  Pom.  Eq.  Jur.  §§  300,  314,  326.  J 

(2)  For  instance,  of  contracts  with  railway  companies,  see  Lord  James  Stuai-t 
V.  London  &  N.  W.  Ry.  Co.  1  De  G.  M.  &  G.  721 ;  Webb  v.  Direct  London,  etc., 
Ry.  Co.  1  De  G.  M.  &  G.  521  ;  but  .see  remarks  on  these  cases  in  Hawkes  ■«.  Eastern 
Counties  Ry.  Co.  1  De  G.  M.  &  G.  737  ;  5  H.  L.  Cas.  331,  per  Ld.  St.  Lkoxakdh  ; 
South  Wales  Ry.  Co.  v.  Wythes,  1  K.  &  J.  ISG ;  5  De  G.  M.  &  G.  880 ;  Me>^lell  v. 
Surtees,  3  Sm.  &  Gif.  101  ;  Morgan  v.  Mihnan,  3  De  G.  M.  &  G.  35  ;  Garrett  v. 
Banstead,  etc.,  Ry.  Co.  4  De  G.  J.  &  S.  402,  405,  467.  Ag-reenient  to  run  a  grain 
elevator,  etc.,  Richmond  ^\  Dubuque,  etc.,  R.  R.  33  Iowa,  423.  See,  also,  Ham- 
mond V.  Messenger,  9  Sim.  327  ;  Rose  v.  Clark,  1  Y.  &  C.  534  ;  Dhegetoft  v.  Lon- 
don Ass.  Co.,  Mosely,  83;  1  Atk.  547;  Carter  v.  U,  S.  Ins.  Co.  1  John.  Ch.  463; 
Pitkin  V.  Pitkin,  7  Conn.  315  ;  Bailey  v.  Strong,  8  Conn.  278 ;  Redmond  v.  Dick- 
erson,  1  Stockt.  507  ;  Mechanics'  Bk.  v.  De  Bolt,  1  Ohio  St.  591 ;  Bonebright  ■». 
Pease,  3  Mich.  318;  Thompson  v.  Manley,  1(5  Geo.  440;  Deggett  v.  Hart,  5  Flor. 
215 ;  Rees  v.  Parish,  1  McCord  Ch.  59  {  Bell  ?'.  Bemen,  3  Murph.  273 ;  Adair  v. 
Winchester,  7  Gill.  &  John.  114;  Smilev  v.  Bell,  Mart.  &  Yerg.  378;  Mosely  v. 
Boush,  4  Rand.  392  ;  Powell  v.  Central  Plank-Road  Co.  24  Ala.  441 ;  Strasburgh 
R.  R.  V.  Echternacht,  9  Harris,  220. 

(3)  See  Cud  v.  Rutter,  1  P.  Wms.  570  ;  2  Eq.  Cas.  Abr.  18,  pi.  8  ;  Adderley 
V.  Dixon,  1  S.  &  S.  610  ;  Wright  v.  Bell,  5  Price,  329 ;  Cappur  v.  Harris,  Bunb. 
135  ;  Ferguson  v.  Paschall,  11  Mo.  207 ;  Scott  v.  Bellgeny,  4  Miss.  119 ;  Caldwell 
V.  Myers,  Hardin,  551  ;  Madison  v.  Chinn,  3  J.  J.  Marsh.  230  ;  Dalzell  v.  Craw- 
ford,* 2  Pa.  L.  J.  17,  19  ;  Ins.  Co.  of  A.  A.  v.  Union  Canal  Co.  2  Pa.  L.  J.  65,  67 ; 
Savary  v.  Spence,  13  Ala.  501  ;  Bubier  v.  Bubier,  24  Me.  42 ;  Justice  v.  Croft,  18 
Geo.  4*73 ;  Roundtree  v.  McLane,  1  Hempst.  245  ;  Waters  v.  Howard,  1  Md.  Ch. 
112,  118 ;  Hoy  v.  Hansborough,  1  Freem.  Ch.  533,  543 ;  Cowles  v.  Whitman,  10 
Conn.  121,  124;  Bi-owni  v.  GiUiland,  3  Dessau.  539,  ,541;  Gram  v.  Stebbins,  6 
Paige,  124  ;  Austin  v.  Gillespie,  1  Jones  Eq.  261 ;  Ashe  v.  Johnson,  2  Jones  Eq. 
149  ;  Lloy.l  v.  Wheatley,  2  Jones  Eq.  207;  Sullivan  v.  Tuck,  1  Md.  Ch.  59.  [See, 
also,  Memphis  v.  Bi-own,  20  Wall.  289  (a  contract  to  return  cei-tain  bonds,  damages, 
for  the  detention  of  which  could  be  estimati»«l  in  money) ;  Hall  V.  Joiner,  1  S.  C. 
180  (contract  for  tui'pentine  which  the  court  held  had  no  p(>(uliar  value).] 

(4)  Oi-d  V.  Johnson,  1  Jur.  (N.  S.)  1063;  Sturge  v.  Mi.lland  Ry.  Co.,  W.  R. 
(1857-8)  233  ;  [Joslin  v.  Stokes,  3S  N.  J.  E(i.  31.]  And  see  McKewan  v.  Sanderson, 
li.  R.  20  Eip  65.      Suit  to  enforce;  a  guaranty  for  ])aym(!nt  of  money.      Held,  void,. 

70 


NOT   GRANTED    WIIKN   LEGAL    RHMKDY   IS   SUFFICIENT.  G7 

damages,  a  contract  to  lend,  oitlier  money  or  chattels,  will  not  be 
specifically  onforccd  ;(1)  nor  a  contract  to  borro'wr;(2)  nor  a  con- 
tract to  pay  nioney.(8)  A  .spccilic  pcrromianct^  of  contracts  for 
hiring  and  service  is  also  refused,  because  tlic  legal  remedy  is  suf- 
licient,  as  well  as  because  tlie  equitable  relief  is  impracticable ; (4) 
and  tlie  same  is  true  of  the  contract  ((f  agency.(5) 

Sec.  40.  The  specific  performance  of  an  agreiMuent  for  a  tenancy 
from  year  to  year,  wliich  stipulated  that  the  tenant  was  to  abide,  in 
all  respects,  by  the  terms  entered  into  by  a  i)revious  tenant,  and  was 
to  i)ay  for  a  further  agreement  to  be  drawn  nj),  was  refused  on  tlie 
ground  that  the  legal  remedy  was  adequate.  It  was  contended  that 
equity  should  interpose,  in  order  to  settle  the  proper  terms  of  the  final 
contract,  but  it  was  held  that  these  might  l)e  fully  sh(»wii  at  law.(O) 
Contracts  for  the  sale  of  ships,  or  shares  in  them,  stand  upon  a  i)ecul- 
iar  footing,  the  result  of  the  statutory  policy  for  encouraging  and 
protecting  domestic  commerce.  Under  the  registry  acts,  there  can  be 
no  contract  for  the  transfer  of  a  British  ship,  or  of  shares  in  it,  valid  in 
equity,  which  is  not  also  valid  in  law ;  in  other  words,  there  is  no  such 
thing  as  an  equitable  sale  or  title  distinct  from  a  legal  sale  and  title. 
As  a  contract  will  create  a  legal  title,  or  amount  to  a  transfer  in  law, 
it  follows  that  the  legal  remedy  must  always  be  sufficient,  and  thei-e 
can  be  no  place  for  the  interference  of  ecpiity  to  compel  a  specilic  per- 
formance, and  turn  an  equitable  interest  into  a  legal  title  by  the 
execution  of  a  conveyance. (7)     This  doctrine  applies  both  to  sales  and 

as  being'  in  IVaml  of  the  bankriipt  Jict.  Al.so,  held,  iu  no  sense  a,  i"a.se  for  specific 
performance  ;  it  is  simply  a  suit  .against  the  g-iiarantor  to  i-ecover  the  amoimt  (hie, 
and  for  an  accounting  to  ascertain  lunv  much  is  due. 

(1)  Flig-ht  V.  Bolland,  4  Russ.  21)8,  301 ;  Brou-rh  r.  0<hlv.  1  R.  &  My.  f).') ;  Sichel 
V.  Mosenthal,  30  Beav.  371 ;  Thorpe  v.  Hosford,  20  W.  R.  ■<t22  ;  [C'onklin  ?).  Peojile's 
Building-  Assoc,  41  N.  J.  Eq.  20  ;  Bradford,  etc.  R.  R.  Co.  v.  N.  Y.,  L.  E.  iS:  W. 
R.  R.  Co.,  123  N.  Y.  310  (agreement  to  make  advances  to  meet  obligations  of 
another,  not  enfoi-ced).]  Will  Tiot  specitically  enforce  a  charter  jiarty.  De  Mattos 
V.  Gibson,  4  De  G.  &  J.  270 ;  Claringbould  v.  Curtis,  21  L.  .1.  Cli.  ."»41  :  Norton  v. 
Serle,  Finch.  149. 

(2)  Rogers  v.  Cliallis.  27  B(!av.  17.'). 

(3)  Ci-ami)t(in  v.  Varna  Ry.  Co.,  L.  R.  7  Cli.  .")(;2  ;  20  W.  R.  713  (L.  C.) ;  Clark  r. 
Loi-il  Rivers,  L.  R.  .')  Va\.  itl  (cin-ious  case) ;  but  it  seems  an  agrei'ment  to  execute 
a  mortgage,  in  considei'ation  of  money  due,  will  be  specitically  enfoi-ccd  in  c(piity. 
Ashton  V.  Corrigan,  L.  R.  13  Eq.  70.     [See  ante,  §  9,  note.] 

(4)  Johnson  v.  Shrewsbury,  etc.,  Ry.  Co.,  3  De  G.  M.  &  G.  914;  Pickering  ;•. 
Bishop  of  Ely,  2  Y.  &  C.  C.'C.  249;  Stor-ker  v.  Brockh'bank.  3  .Mac  cS:  (x.  2.-)0 ; 
Home  7'.  London  k  N.  W.  Rv.  Co.,  10  W.  R.  170;  Brett  c.  East  India  &  Lon.h.n 
Shipping  (*o..  12  W.  R.  .")90  ;'Mair  v.  Himalaya  Tea  Co..  L.  R.  1  Eip  411  ;  |Kenni- 
cott  i'.  Leavitt.  37  111.  App.  43.").| 

(.'))  Cliinnock  c.  Saiusburv.  30  T>.  .1.  (X.  S.)  Ch.  -lO'.l. 
(('))  Clayton  v.  llliinrworth.  10  Ha.  4.")1. 

(7)  S(>e'  0  (4eo.  IV,"  ch.  110,  §  31  ;  S  &  9  Vict.  cli.  SO.  §  34.  which  i>rovides  th;it 
Mhen  pi'operty  in  a  vessel,  oi"  a  part  tliei-eof.  shall   be  sold,  "the  same-  shall   bi^ 

7J 


68  SFECIUC   VKUhORMANCE    OF   CONTRACTS. 

to  contracts,  the  statutes  preventing  any  equitable  right  arising  from 
notice  or  other  incidents.(l)  A  contract,  however,  which  re hxtes  exchi- 
sively  to  the  proceeds  arising  from  the  sale  of  a  vessel,  and  not  to  tlu^ 
ship  itself,  is  said  not  1o  he  within  the  acts,  and  it  may,  therefore, 
under  the  proper  couditions,  be  specifically  enforced.(2)  Although 
it  has  been  judicially  stated  that  fraud  might  be  an  occasion  for  the 
interference  of  equity,  in  respect  of  such  contracts,  no  case  has 
decided  the  question,  aud  nuich  less  determined  what  particular  fraud 
would  create  an  equitable  right. (3)  The  United  States  statutes  con- 
cerning shipping  are  framed  in  accordance  with  the  same  policy,  and 
contain  similar  provisions. (4)  An  agreement  to  sell  a  foreign  ship, 
not  affected  by  the  navigation  acts,  may  be  specifically  enforced. (5) 

Where  a  provision  is  made  for  liquidated  damages. 

Skc.  50.  Where  the  parties  to  any  agreement,  whatever  may  be  the 
subject-matter  or  the  terms,  have  added  a  provision  for  the  payment, 
in  case  of  a  breach,  of  a  certain  sum  which  is  truly  liquidated  damages 
and  not  a  penalty — in  other  words,  where  the  contract  stipulates  for 
one  of  two  things  in  the  alternative,  the  performance  of  certain  acts, 
or  the  payment  of  a  certain  amount  of  money  in  lieu  thereof — equity 
will  not  interfere  to  decree  a  specific  performance  of  the  first  alterna- 
tive, but  will  leave  the  injured  party  to  his  legal  remedy  of  recovering 
the  money  specified  in  the  second.     The  reason  of  this  rule  is,  that 

transferred  by  bill  of  sale  or  other  instrument  in  writing-,  containing-  a  recital  of 
the  certificate  of  registry  of  sucli  ship  oi-  vessel,  or  the  principal  contents  thei-ecf, 
otherwise  such  transfer  shall  not  be  valid  or  effectual  for  any  2}'"'Wose  whatever, 
either  in  law  or  in  equity."  As  an  agreement  without  this  recital  is  absolutely 
void,  there  is  no  such  thing-  as  an  agreement  to  transfer  a  ship  lohich  does  not 
actually  transfer  it,  so  that  there  can  be  no  occasion  for  any  further  specific  execu- 
tion. 17  &  18  Vict.  ch.  104,  §  43.  omits  the  above  clause  making-  the  instrument 
void  at  law  and  in  equity,  etc.,  but  this  chang-e  in  the  statutory  languag-e  has  not 
made  any  change  in  the  doctrine  laid  down  by  the  courts.  See  Brewster  v.  Clarke, 
2  Mer.  75 ;  Thompson  v.  Leake.  1  Madd.  89  ;  Newnham  ^\  Graves,  1  Madd.  899. 
n.  ;  Battersby  v.  Smyth,  8  Madd.  110  ;  Hughes  v.  Morris,  2  DeG.  M.  &  G.  349, 
3.")7  ;  Coombes  v.  Mansfield,  24  L.  J.  Ch.  r)18  ;  3  Drew.  193  ;  Livei-pool  Boroug-li  Bk. 
V.  Turner,  2  DeG.  F.  &  J.  502  ;  IJ.  &  H.  1.59  ;  McLarty  v.  Middleton,  9  W.  R.  861. 

(1)  McCalmont -w.  Rankin,  2  DeG.  M.  &  G.  403,  which  contains  an  exhaustive 
discussion  of  the  principle  and  the  decisions  by  Ld.  St.  Leonards. 

(2)  Armstrong  v.  Armstrong,  21  Beav.  78 ;  McCalmont  v.  Rankin,  2  DeG.  M.  & 
G.  424,  per  Ld.  St.  Leonauds  ;  Coombs  v.  Manstieid,  3  Drew.  193  ;  Clarke  ■?>. 
Batters,  1  K.  &  J.  242. 

(3)  Armstrong  v.  Armstrong,  21  Beav.  71,  87  ;  in  McCalmont  v.  Rankin,  2  DeG. 
M.  &  G.  416,  421,  Ld.  St.  Leonards  said:  "I  am  perfectly  clear  that,  so  far 
as  the  authoi-ities  have  g-one,  there  have  been  cases  very  much  like  fraud,  and  yet 
no  relief  has  been  g-iven."     See  Holderness  v.  Lamport,  29  Beav.  129. 

(4)  U.  S.  R.  S.  §  4170. 

(5)  Hart  v.  Herwig,  L.  R.  8  Ch.  860. 

72 


KOT   GRA^TKD     WIlKy   LhUlAlj    liKMKn)'   IS   ISirFFICIEXT.  69 

the  })arties  Ikivc  formally  agrocd  uiioii  llic  coiiiijeusatiou — have 
assesse«l  the  (lamayos — and  liave  Thoreliy  declart'd  lliat  an  appeal 
to  equity  i-  iiiiuecessaiy,  since  they  have  nuuh'  tlit^  lei,''al  relief 
ade4iiati>.(l )  if  lh(^  piovLsion  for  a  pecuniary  j)aynient  is  a  penalty, 
however,  ir,  may  be  dirsre^'^arded,  and  tlie  .substantial  part,  of  the 
agreement  sjieeitically  enforced,  provided  it  is  one  to  wliich  the 
equitable  remedy  can  be  applied. (2)  The  mere  fact  that  a  contract 
contains  a  penalty  is  not,  of  itself,  a  ground  for  decreeing  a  sitecific 
performance;  the  terms  must  be  sucli  that  relief  Avould  have  been 
given  without  the  penalty,  and  then  the  presence  of  it  would  not 
interfere  with  the  equitable  jurisdiction.  It  is  not  within  tln^  jjrovince 
of  the  present  work  to  distinguish  between  penalties  and  liquidated 
damages.     I  liave  simply  collected  in  the  foot-note  a  number  of  cases 

(1)  Howanl  v.  Hopkins,  2  Alk.  :571 ;  French  v.  .Ma  ale,  2  Dr.  &  War.  2(11) ;  Roper 
■?•.  Bartholomew,  12  Pri.  7i)7;  Skiinier  v.  Dayton,  2  John.  Ch.  r)2() ;  City  Bank  of 
l^altimore  v.  Smith,  8  Gill  &  John.  2(j.') ;  Jones  v.  Gi-een,  3  V.  &  J.  298  ;  Coles  x\ 
Sims,  5  De  G.  M.  &  (4.  1  ;  Jaquith  v.  Hudson,  5  Mieh.  1215 ;  Cotheal  v.  Talmailtre. 
9  N.  Y.  5.')!;  Baglev  v.  Ped.lie,  IG  N.  Y.  469;  Chamberlain  v.  Bajrley,  11  N.  H. 
234  ;  Williams  v.  Dakin,  22  Wend.  201  ;  Rolfe  v.  Peter.son,  2  Bro.  P.  C.  43!);  Wood- 
wai-d  V.  Gyles,  2  Vei-n.  Ill)  ;  (xerra.-d  v.  O'Reilly,  8  Di-.  ik,  War  414  ;  IMa^n-aae  v. 
Archbold,!  Dow,  107  ;  Rang-er  v.  Great  Western  Ry.  Co.,  f)  H.  L.  C.  73  ;  Hahn  v. 
Concordia  Society,  42  Md.  4G0. 

(2)  Chillinor  •?).  Chilliner,  2  Yes.  Sen.  528;  Hobsoii  v.  Trevor,  2  P.  Wms.  YM; 
Kennedy  v.  Lee,  3  Meriv.  441,  450;  Howard  v.  Hopkins,  2  Atk.  371  ;  Pi-el)l)le  v. 
Boij-hurst,  1  S\v.  309  ;  Jeudwine  v.  Agate,  3  Sim.  141  ;  Ijogan  v.  Wienholt,  1  CI.  k. 
Fin.  611;  7  Bli.  (N.  S.)  1,  49,  50;  Butler  v.  Powis,  2  Coll.  C.  C.  156;  Roper  v. 
Bartholomew,  12  Pi-i.  797  ;  Sloman  t\  Walter,  1  Bro  C.  C.  418  ;  Jones  i\  Heaven.s. 
L.  R.  4  Ch.  D.  636;  In.  re  Dag-eidiam  Dock  Co.  Es  parte  Hulse,  L.  R.  8  Ch.  1022 
(provision  in  a  certain  contract  foi-  sak^  of  land  held  to  be  a  jienaltv) ;  [Lyman  v. 
Gedney,  114  III.  388;  McCauU  v.  Braham,  16  Fed.  Rep.  37;  DianKHid  Match  Co. 
V.  Roeber,  106  N.  Y.  473,  4S(; ;  Hubbard  v.  John.soTi,  77  Me.  139  ;  Ri)j)es  v.  Upton. 
125  Mass.  258.  J  A  bond  v>-ith  a  ])enalty  to  convey  land  will  l)e  .-jn'iatically  enforced 
a;,'-ainst  the  obligor ;  he  cannot  elect  to  convey  or  to  ])ay  the  penalty  ;  it  is  imma- 
terial that  the  purchaser  is  not  formally  boun<l,  or  has  not  perl'oi-med,  if  he  offers 
to  perform ;  performance  on  his  jiai't  can  be  secured  in  the  decree.  Ewins  r. 
Gordon,  49  N.  H.  444.  Where  a  person  has  bound  himself,  by  liis  covenant,  to 
<lo  or  to  omit  a  specified  thing,  and  has  fixed  a  certain  siun  of  money  which  he 
will  pay  upon  a  breach  of  the  covenant,  he  is  not  thereby  absolved  from  the  pei-- 
formance  of  the  thing  agreed,  and  equity  will  specifi(;ally  enfcnve  fh<>  contrai-f.  if 
it  is  otherwise  a  jiroper  one  to  be  so  enforced.  Gillis  7'.  Hall,  7  Pliila.  422;  2 
Brews.  342  ;  Dooley  v.  Watson,  1  Gray,  414,  per  SiiAW,  C.  J.  :  "Courts  of  ecpiity 
have  long  since  overruled  th(»  doctrine  that  a  bond  for  tin;  payuK'ut  of  money, 
conditicmed  to  be  void  on  the  (conveyance  of  land,  is  to  be  ti-eated  as  a  mere 
agreement  to  pay  money.  "When  the  ])(!nalty  ap]ieai's  to  be  intend(>d  merely  as  a 
security  for  the  performance  of  the  agre(!m<Mit,  the  principal  ol)ject  of  flie  ])arties 
will  be  carried  out."  See,  also.  Hooker  v.  Pynt'hon,  8  Grav,  55() ;  l-^isher  v.  Shaw, 
42  Me.  32  ;  Hull  v.  Sturdivant,  46  Me.  34  ;  Dailev  v.  Lichheld.  10  Mi.-h.  29  ;  [Rop<>s 
V.  Upton,  125  Mass.  2.58  ;  Wati-ous  v.  Alh-n,  57  Mich.  362  ;  Di.-unond  Match  Co.  v. 
Roeber,  106  N.  Y.  473.]  In  Whitney  i:  Stone,  23  Cal.  275,  it  was  held  that  an 
award  otherwise  proi)er  would  be  enforced,  although  the  agreement  to  submit 
cimtained  a  penalty.  [For  further  discussion  on  this  subject,  see  Pom.  Ftp  Jnr. 
•§§  436-447,  and  cases  cited.] 

73 


70  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

in  which  contracts,  with  penalties,  have  been  specifically  enforced. 
Having  thus  described  the  general  nature  of  the  remedy,  I  shall  pro- 
ceed to  discuss,  in  a  more  particular  and  exhaustive  manner,  the 
features  and  incidents  which  must  belong  to  the  contract  in  order 
that  the  equitable  remedial  right  may  exist. 
74 


NATURE,    ELKXhWTS,    I'KATVRES,    KTO.  71 


CHAPTER   II. 

THE  NATURE,  ELEMENTS,  FEATURES,  AND  INCIDENTS  WHICH  MUST 
BELONG  TO  CONTRACTS  IN  ORDER  '  THAT  THEY  MAY  BE  SPECIFI- 
CALLY   ENFORCED. 

Section  51.  I  purpose,  in  the  present  chapter,  to  examine,  in  an 
exhaustive  manner,  those  elements  inhering  in  the  very  contract 
itself,  and  those  incidents  connected  with  its  formation,  all  of  which, 
taken  together,  determine  whether  the  remedy  of  specific  perform- 
ance can  be  granted.  This  discussion  does  not  embrace  the  acts  or 
omissions  of  the  parties  subsequent  to  entering  into  the  agreement 
which  affect  the  right  to  relief,  such  as  the  performance  or  non-per- 
formance of  conditions  precedent,  delay  when  time  is  or  is  not  of  the 
essence,  and  the  like,  nor  the  proceedings  connected  with  the  suit 
and  the  settling  the  decree  ;  but  the  inquiry  is  confined  to  the  essen- 
tial features  of  the  contract,  and  to  the  acts  and  omissions  of  the  par- 
ties during  the  preliminary  negotiations,  or  during  the  process  of 
formulating  their  mutual  assent,  which  may  impart  a  special  charac- 
ter to  the  resulting  compact.  Upon  these  essential  features  and  this 
preliminary  conduct  depends  the  right  to  the  equitable  remedy.  The 
examination  of  these  elements  and  incidents  will  be  facilitated  by 
arranging  them,  according  to  a  natural  division,  into  four  (4)  distinct 
classes,  namely : 

First.  Those  w-hich  pertain  to  the  external  form  of  the  agreement, 
and  the  manner  of  expressing  its  various  terms,  and  which,  in 
analogy  to  the  common-law  requisites,  relate  to  the  very  existence  of 
a  binding  contract 

Second.  Those  which  do  not  involve  the  validity  of  the  contract, 
but  directly  aff'ect  the  equitable  remedy  on  the  principle  that  he  who 
seeks  equity  must  do  equity. 

Third.  Incidents  connected  with  the  preliminary  conduct  of  the 
parties,  w^hich  involve  the  validity  of  the  contract  in  equity,  and, 
therefore,  aff'ect  the  equitable  remedy. 

Fourth.  Those  features  and  incidents  wnich  relate  lo  the  actual 
enforcement  of  the  decree,  and  require  that  a  specific  performance 
should  be  practicable. 


72  sfecifiu  ptrbormanck  of  contracts. 

First. 

Those  features  which  pertain  to  the  external  fwrn  of  the  agreement,  arid 
the  mannefi'  of  expi^essing  its  various  terms,  and  which,  in  analogy  to 
the  common-law  requisites,  relate  to  the  very  existence  of  a  binding 
contract. 

Section  52.  As  the  very  basis  of  the  remedy  of  specific  performance, 
there  must,  in  general,  be  a  valid  and  binding  contract.  Even  those 
special  instances  where  equity  will  give  relief,  although  no  action  at 
law  can  be  maintained,  are  not,  in  substance,  departures  from  the 
principle.  In  the  case  of  verbal  contracts,  remediless  at  law  under 
the  statute  of  frauds,  but  which  equity  will  enforce  when  suificiently 
part  performed,  there  must  still  be  a  perfect  and  certain  agreement ; 
a  complete  assent  of  the  parties,  which  would  be  binding,  were  it  not 
for  the  statute.  In  the  cases  where  an  action  at  law  would  fai^ 
because  the  plaintiff  has  not  fully  performed  all  of  the  terms  on  his 
part,  but  where  equity,  regarding  these  terms  as  not  of  the  essence, 
will  grant  its  remedy,  there  must  originally  have  been  a  contract 
legally  valid.  And  even  in  those  very  rare  and  exceptional  cases, 
where  no  legal  action  can  be  maintained  because  the  stipulations  are 
provisional,  and  contemplate  some  further  undertakings  in  order  to 
completely  express  and  carry  out  the  intentions  of  the  parties,  equity 
interferes  to  execute  the  agreement  only  when  its  terms  are  so 
explicit,  clear,  and  certain  that  a  refusal  to  perform  them  would  be 
unconscientious.  The  j)articular  matters,  therefore,  embraced  under 
the  foregoing  division,  belong  rather  to  the  general  doctrine  of  con- 
tracts than  to  the  special  subject  of  specific  performance ;  they 
directly  answer  the  question :  What  is  a  valid  and  binding  contract 
which  may  be  enforced  by  any  remedy,  legal  or  equitable  ?  And  only 
indirectly  the  inquiry :  What  are  the  contracts  to  which  the  equitable 
remedy  is  confined  ?  Some  of  the  matters  relate  so  closely  to  the 
validity  of  all  contracts,  that  I  shall  treat  of  them  in  a  very  brief  and 
cursory  manner,  referring  the  reader  to  the  treatises  upon  contracts 
at  large ;  others  have  so  practical  and  intimate  a  connection  with  the 
remedy  of  specific  performance,  that  their  discussion  will  be  thorough 
and  exhaustive.  The  features  of  the  contract  included  within  the 
first  class,  as  above  mentioned,  are  :  The  capacity  of  the  parties  to 
contract ;  the  consideration  ;  the  conclusion  of  the  contract ;  its  com- 
pleteness ;  its  certainty  ;  its  mutuality. 

76 


CAPACITY    TO    C<).\riiAC  i:  73 

SECTION  1. 

The  parties  nrnst  //are  the  capacity  tn  contract. 

Section  53.  Botli  the  parties  must  have  the  le^'-al  capacity  to  con- 
tract. The  defendant  may  always  set  vip  his  own  want  of  such  capa- 
city as  a  defense  ;  and  by  virtue  of  the  doctrine  tliat  the  remedial 
right  must  be  mutual — whicli  will  be  discussed  in  a  subsecjuent  sec- 
tion— he  may,  also,  rely  ujion  the  w'antof  the  capacity  in  the  plaintiff'. 
Capacity  is  not  a  right,  for  a  riglit  must  necessarily  be  held  by  one 
person  relatively  to  another  person  or  persons,  and  always  implies 
corresponding  duties  resting  upon  that  person  or  collection  of  pei-sons. 
Capacity  is  not  thus,  in  its  essential  nature,  relative,  and  does  not 
involve  the  existence  of  corresponding  duties.  Legal  capacity  is  the 
power  residing  in  a  person  of  acquiring,  holding,  and  transferring 
legal  rights,  or  of  becoming  subjected  to  legal  duties.  Capacity  to 
contract  is,  therefore,  the  legal  powder  residing  in  a  person  of  acquir- 
ing rights,  or  of  becoming  subjected  to  duties,  by  means  of  a  contract 
to  which  he  is  one  of  the  parties.  The  existence  of  such  capacity  is 
the  general  rule,  and  the  cases  where  incapacity  is  complete  and  abso- 
lute are  plainly  few  and  infrequent.  The  common-law  disabilities  of 
married  women,  modified  in  the  first  place  by  courts  of  equity,  have 
been,  to  a  much  greater  extent,  removed  by  modern  legislation  in  most 
of  the  American  states.  The  incapacity  of  infants  is  partial  only,  while 
that  of  lunatics  and  persons  of  unsound  mind  depends  upon  the  men- 
tal condition,  and  disappears  entirely  during  lucid  intervals.  The 
incapacity  to  contract  should  be  carefully  distinguished  from  what  is 
often,  but  most  improperly,  called  the  inca[)acity  to  execute  a  con- 
tract. In  the  condition  indicated  by  the  latter  expression,  there  is 
no  incapacity,  but  only  an  inability  or  impossibility,  arising  from  the 
special  circumstances.  When  a  person  has  agreed  to  sell  a  certain  farm 
which  he  does  not  ow^n,  or  which  he  has  conveyed  to  another  person 
in  good  faith,  he  cannot  perform  his  contract,  not  because  of  any  inca- 
pacity residing  in  him  to  convey  land,  but  because  of  his  inability  to 
convey  that  particular  land  resulting  from  his  want  of  title.  The 
capacity  or  incapacity  of  a  party  to  contract  must  be  referred  to  the 
act  of  making  the  agreement,  and  be  judged  of  at  that  time;  the 
inability  of  a  party  to  perform  must  be  referred  to  the  time  of  exe- 
cution. 

Sec.  54.  The  ordinary  instances  of  legal  incapacity  to  contract  aris- 
ing from  marriage,  infancy,  lunacy,  unsoundness  of  mind,  and  the  like, 

77 


74  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

liave  no  peculiar  effect  upon  the  equitable  remedy  diffei-ent  from  that 
produced  upon  the  legal  action  for  a  pecuniary  judgment.  Their  dis- 
cussion properly  belongs  to  a  treatise  upon  the  Law  of  Contracts,  and 
will  be  entirely  omitted  in  the  present  work.  I  shall  confine  myself 
to  the  capacity  of  married  women,  conferred  by  recent  legislation,  to 
contract  with  reference  to  their  separate  estates;  and  to  the  incapa- 
city of  corporations  with  reference  to  contracts  ultra  vires. 

Sec.  55.  The  existing  statutes  of  the  several  states  concerning 
married  "women,  so  far  as  they  have  abolished  the  counnon-luw  rules 
and  disabilities,  are  of  two  distinct  types.  The  general  intent  of  the 
first  class  is  to  place  the  wife,  with  respect  to  lier  own  property,  in 
exactly  the  same  legal  position  which  a  single  woman  or  a  married  man 
occupies.  All  the  real  and  personal  projperty  which  she  owned  before 
marriage,  and  all  that  she  acquires  during  the  marriage  by  gift,  grant, 
purchase,  devise,  etc. — and,  in  most  of  the  states,  all  that  she  obtains 
as  earnings  or  by  her  services — is  her  own  separate  property,  free 
from  all  right  and  interest  of  her  husband ;  she  possesses  the  sole 
power  to  manage  it ;  may  soil  or  convey  it,  or  any  part  of  it,  without 
the  consent  or  joinder  of  her  husband  ;  and  may  make  any  contracts 
in  relation  to  it  in  the  same  manner,  and  to  the  same  extent,  and  with 
like  eff'ect,  as  though  she  were  single  ;  or,  as  it  is  expressed  in  several 
states,  "  as  a  married  man  may  in  relation  to  his  real  and  personal 
property."(l)  In  some  of  the  statutes,  however,  which  fairly  belong 
to  this  class,  since  they  permit  the  wife  to  "sell  and  convey"  her 
property  without  the  consent  or  joinder  of  her  husband,  the  provision 
empowering  her. to  make  all  contracts  in  relation  to  her  property,  is 
omitted. (2)  In  the  second  class,  the  property  of  a  married  woman  is, 
also,  declared  to  be  her  separate  property,  free  from  any  interest  or 
control  of  her  husband,  and  not  liable  for  his  debts,  but  the  statutes 
contain  no  provision  expressly  empowering  her  to  make  contracts,  and 

(1)  Laws  of  New  York,  ISGO,  ch.  90,  §§  1-3,  7,  8  ;  ib.  1862,  ch.  172,  §^>  1-4. 
California— Cix.  Code,  §§  162,  et  seq.  Illinois— Gen.  Stat.  (Gross),  v.  3,  p.  229, 
§§  6,  9  (passed  in  1874)  ;  ib.  v.  1,  p.  439,  §  2.  loioa-Rev.  Code  (1873),  p.  396, 
§  2202;  p.  398,  §  2213.  Kaiisas— Gen.  Stat.  (1868),, p.  563,  §  2.  Massachusetts— 
R.  S.  (1873),  p.  537,  §§  1,  3,  5  ;  also  Laws  of  1874,  ch.  184,  §  1  (Supp.  to  R.  S.,  v. 
2,  p.  132).  Micliigan—Comp.  Laws  (1871),  V.  2,  p.  1477,  §  1.  JVebraska— Gen. 
Stat.  (1873),  p.  465,  §§1,4;  p.  880,  §  42.  New  Hampshire— Gen.  Stat.  (1867),  p. 
337,  §  1 ;  p.  338,  §§  5,  13.  (No  express  power  is  given  to  the  wife  to  convey  her 
i-eal  estate,  but  she  has  the  same  rig-hts  and  remedies,  may  sue  and  be  sued  in 
law  and  equity  upon  any  contract  made  by  her,  as  though  she  were  single  ;  wives 
of  aliens,  etc.,  living  apart  from  their  husbands,  may  contract,  convey,  etc.). 
Wisconsin— R.  S.  (1871),  p.  1195,  §§  1-3. 

(2)  Maine— R.  S.  (1871),  p.  491,  §  1.      Wisconsin— R.   S.  (1871),  p.  119.5.  §^  1-3. 

78 


CAPACTTY   TO    CONTliACT.  75 

the  husband  must  join  in  all  contracts  relating''  to  or  conveyances  of 
her  land,  or  give  liis  assent  thereto,  in  several  of  the  states,  whoso 
legislation  belongs  to  this  class,  the  wife  is  clothed  witli  llie  full  power 
of  a  single  woman  wliile  she  is  living  separate  from  her  husband,  or 
while  he  is  insane,  or  imprisoned  in  a  state  i)rison.(l) 

Contracts  ultra  vires  of  corporatiohs. 

8ec'.  56.  Analogous  to  the  legal  capacity  of  natural  persons  to  make 
valid  agreements  is  the  legal  power  of  corporations — often  called  arti- 
ficial persons — to  enter  into  contracts  which  shall  create  rights  and 
duties  enforceable  at  law  or  in  equity.  Any  discussion  of  the  powers  of 
corporations  is,  of  course,  wholly  beyond  the  scope  of  this  treatise  ;  and 
I  shall  simply  state  the  general  principles  w-hich  determine  the  validity 
and  govern  the  enforcement  of  corporate  contracts.  The  fundamental 
doctrine  is  now  settled,  both  in  Great  Britain  and  in  the  United  States, 
that  all  civil  corporations,  private  or  municipal,  are  capable  of  binding 
themselves  by  any  contract,  except  Avhen  the  statutes  by  wdiich  they  are 
created  or  regulated  expressly,  or  by  necessary  implication,  proliil)it 
such  contract.  Or,  to  state  the  same  proposition  in  an  affirmative  man- 
ner, corporations  possess  all  those  powers  which  are  expressly  confei-red 
upon  them  by  the  acts  of  incorporation,  and  all  those  additional 
powers  (sometimes  denominated  incidental),  which  are  reasonably 
necessary  for  the  purpose  of  carrying  into  effect  the  powers 
expressly  granted,  and  of  thus  attaining  the  objects  of  their  creation, 
and  they  possess  no  others. (2)     The  same  fundamental  principle  con- 

(1)  Alahaina—CoAe  (1867),  §  2373.  Florida— BnsA\'&  Dig-.,  p.  580,  §  4.  Ken- 
tucky— R.  S.  (Stanton's),  v.  2,  p.  12,  §  14  (if  husband  al»andons  his  wife  or  is 
imprisoned  more  than  a  year,  she  may  make  contracts,  etc.).  Maryland — Code, 
V.  1,  p.  325,  §  1,  p.  B2(5  (her  earning-s  she  can  sell,  invest,  and  dispose  of  as  a  sin- 
gle woman).  Minnesota — Stat,  at  Large  (1873),  v.  1,  p.  702,  §§  47,  4S.  New 
Jersey — Nixon's  Dig-.  (4th  ed.),  p.  548,  §  12  ;  p.  549,  §  18  (when  husband  is  lunatic, 
etc.,  or  imprisoned,  or  they  are  living-  separate  under  a  judicial  deci-ee,  wife  can 
conti-act  or  convey,  but  even  then  cannot  cut  oft"  any  intc^rost  which  he  may  have). 
Oregon— Qen.  Laws  (1872).  pp.  25,  663.  Ohlo—^.  S.  Snpp.,  pp.  389-301.  Penn- 
syhtanta — Brightley's  Purdon's  Dig--,  v.  2,  p.  1005,  §  13.  Rhode  Island — Gen. 
Stat.  (1872),  p.  329,  §§  1,  7  ;  R.  S.,  p.  314,  §§  1,  3  (wife  living-  apart  from  her  hus- 
band may  sell,  convey,  etc.).  Tennessee — Stat.  (1871),  §§  24S6a-248tif  (when  wife 
lives  apart,  or  hnsliand  is  insane,  etc.,  she  can  dispose  or  convey  as  -a  feme  soli). 

rmftorai— Gen.  Stat.  (1862),  p.  471,  §  18. 

(2)  Colman  v.  Easton  Counties  R'y  Co.,  10  Beav.  1,  per  Lord  L.vxGDALii ;  IJag-- 
shaw  V.  Eastern  Union  R'y  Co.,  7  Har.  114,  perWirjRAM,  V.  C.  ;  Shrewsbury,  etc., 
R'y  Co.  V.  London,  etc.,  R'y  Co.,  22  L.  J.  Ch.  682,  per  Turnkr,  L.  J.  ;  South 
Yorkshire,  etc.,  Co.  r.  Great  Northern  R'y  Co.,  9  Exch.  55,  84,  per  Pauku,  B.  ; 
East  Anglian  R'y  Co  v.  Eastern  Co.  R'y  Co.,  11  C.  B.  775,  per  Jioi;vi.s,  C.  J.  ; 
Eastern  Co.  R'y  Co.  v.  Hawkes,  5  H.  L.  Cas.  348,  per  Lord  CRAjfwouTa  ;  Scottish. 

79 


76  SPECIFIC  PERFORMA.\CE    OF   CONTRACTS. 

cerning  the  powers  of  corporations  is  found  alike  in  the  British  and 
in  the  American  law ;  the  differences  between  the  two  consist  in  the 
application  of  this  principle.  The  American  law  is  liberal  in  admit- 
ting implied  powers,  and  its  tendency  is  to  regulate  the  acts,  trans- 
actions, and  contracts  oi  corporations,  within  the  scope  of  their 
authority,  by  the  same  rules  which  govern  the  similar  acts  and  obli- 
gations of  natural  persons.  As  the  general  principle  formulated  above 
defines  the  nature  and  extent  of  all  corporate  powers,  it  must  be 
invoked  to  determine  the  validity  of  contracts  made  by  corporations, 
and  its  effect  upon  such  contracts  is  the  only  question  for  our  present 
consideration.  In  the'  first  place,  it  is  the  settled  rule  that  all  con- 
tracts made  by  a  corporation  are  prima  facie  valid,  and  the  burden 
of  proof  lies  on  the  party  who  impeaches  any  particular  corporate 
agreement. (1)    Contracts  and  oLher  acts  of  a  corporation,  which  exceed 

N.  E.  R'y  Co.  V.  Stewart,  3Macq.  3S2,  414,  per  Lord  Wensleydale  ;  Shrewshury, 
etc.,  R'y  Co.  v.  North  W.  R'y  Co.,  6  H.  L.  Cas.  113.  124,  per  Lord  Cranworth  ; 
Taylor  v.  Chichester,  etc.,  R'y  Co.,  L.  R.  2  Exch.  356,  384,  per  Blackbdrn,  J.  ; 
Bissell  V.  Michigan  So.,  etc.,  R.  R.,  22  N.  Y.  262,  281 ;  Curtis  ?).  Leavitt,  15  N.  Y. 
157 ;  Buffet  v.  Troy  &  B.  R.  R.,  40  N.  Y.  168  ;  People  v.  Utica  Ins.  Co.,  15  Johns. 
358 ;  N.  Y.  Fireman's  Ins.  Co.  v.  Stiirges,  2  Cow.  675 ;  N.  Y.  Fireman's  Ins.  Co. 
V.  Ely,  2  Cow.  699  ;  LeCoutenlx  v.  Buffalo,  33  N.  Y.  333  ;  Trustees  v.  Peaslee,  15 
ri.  H.  330 ;  Downing-  v.  Mt.  Washington  Road  Co.,  40  N.  H.  230  ;  Fuller  v.  Plain- 
field  School,  6  Conn.  532 ;  Hood  v.  N.  Y.  &  N.  H.  R.  R.,  22  Conn.  1 ;  Shawmut 
Bk.  V.  P.  &  M.  R.  R.,  31  Yt.  491 ;  Com.  v.  Erie,  etc.,  R.  R.,  3  Casey,  352 ;  Penn., 
etc.  Nav.  Co.  v.  Dandridge,  8  G.  &  J.  248  ;  YV^hites  Bk.  v.  Toledo  Ins.,  12  Ohio  St. 
601  ;  R.  R.  V.  Seeley,  45  Mo.  220  ;  Petersburg  v.  Metzker,  21  111.  205  ;  Whitman 
Mining  Co.  v.  Baker,  3  Nev.  386 ;  Vandall  v.  S.  S.  F.  Dock  Co.,  40  Cal.  83 ; 
Miner's  Ditch  Co.  v.  Zellerbach,  37  Cal.  543 ;  Bk.  of  Augusta  v.  Earle,  13  Peters, 
587  ;  Dartmouth  Coll.  v.  Woodward,  4  Wheat.  636. 

(1)  Shrewsbury,  etc.,  R'y  Co.  v.  Novth  Western  R'y  Co.,  6  H.  L.  Cas.  113,  124, 
per  Lord  Cranworth  ;  Scottish  North  Eastern  R'y  Co.  v.  Stewart,  3  Macq.  382, 
414;  Taylor  v.  Chichester,  etc.,  R'y  Co.,  L.  R.  2  Exch.  356,  384,  per  Blackburn, 
J.,  who  said:  "We  are  entitled  to  consider  the  question  to  be,  not  whether  the 
defendants  had,  by  virtue  of  the  acts  of  incorporation,  authority  to  make  the  con- 
tract, but  whether  they  are  by  those  statutes  foi-bidden  to  make  it."  Chautauqua 
County  Bk.  v.  Risley,  19  N.  Y.  369  ;  Farmei-s'  Loan  &  T.  Co.  v.  Clowes,  3  N.  Y. 
470  ;  DeGroff  r.  American,  etc.,  Co.,  21  N.  Y.  124;  Yates  v.  Van  De  Bogert,  56 
N.  Y.  £26  ;  Akin  v.  Blanchard,  32  Barb.  527  ;  McFarlan  v.  Triton  Ins.  Co.,  4  Denio, 
392 ;  Farmei-s'  Loan  &  T.  Co.  v.  Perry,  3  Sandf.  Ch.  339  ;  Saffoi-d  v.  Wyckoff,  4 
Hill,  442 ;  Fireman's  Ins.  Co.  v.  Sturges,  2  Cow.  664 ;  Ex  x>o.rte  Peru  Iron  Co.,  7 
Cow.  540  ;  Downing  v.  Mt.  Washington,  etc.,  Co.,  40  N.  H,  230  .  Middlesex,  etc., 
Assn.  V.  Davis,  3  Met.  133 ;  Morris  &  Essex  R.  R.  v.  Sussex  R.  R.,  5  C.  E.  Green, 
542  ;  Allegheny  City  v.  McClurkan,  14  Pa.  St.  81  ;  Blake  v.  Holley,  14  Ind.  383  i 
Charleston,  etc.,  Turnp.  Co.  v.  Willey,  16  Ind.  34;  Dana  v.  Bank  of  St.  Paul,  4 
Minn.  385 ;  Underwood  v.  Newport  Lyceum,  5  B.  Mon.  129 ;  Talmadge  v.  N.  A. 
Coal  Co.,  3  Head,  337;  Mitchell  v.  Rome  R.  R.,  17  Geo.  574  ;  Oxford  Iron  Co.  v. 
Spradley,  46  Ala.  98. 
80 


CAl'ACrj'y    TO    CU^TIiACT.  77 

or  are  beyond  the  powei-s  conferred  by  law  npon  tlie  entire  body 
acting  through  any  of  its  instrumentalities,  are  called,  in  the  modern 
legal  nomenclature,  ultra  tires.  This  quality  inherent  in  the  corporate 
act  should  be  carefully  distinguished  from  illefiaUti/,  and  from  the  mere 
exceeding  the  powers  conferred  upon  the  corporation  othccrs  or  other 
agents  acting  o.s  affents.  Cases  of  illegality  arc  governed  by  rules 
applicable  alike  to  corporations  and  to  individuals;  while  cases  of 
mere  transcending  the  authority  held  by  the  corporate  agents,  are 
determined  by  the  doctrines  of  the  law  as  to  agency.(l)  A  contract 
is  idtra  vires  wliere  it  is  not  within  any  of  the  powers  expressly  or 
impliedly  conferred  upon  the  corporation  by  its  act  or  acts  of  incor- 
poration. (2)  The  question  as  to  the  legal  eifect  of  corporate  contracts 
or  other  acts  which  are  ultra  vires,  may  arise  in  three  kinds  of  actions, 
namely:  1,  in  an  action  against  the  corporation,  brought  by  the  state 
or  by  some  public  officer,  for  the  purpose  of  revoking  its  charter,  or 
inflicting  some  other  penalty  on  account  of  its  violation  of  the  law 
restraining  its  corporate  authority ;  2,  in  an  action  against  the  cor- 
poration, brought  by  an  individual  corporator,  or  sometimes  by  a 
public  officer,  for  the  express  purpose  of  preventing  it  and  its  officers 
from  proceeding  in  violation  of  their  corporate  powers ;  and  3,  in  an 
ordinary  action,  either  legal  or  eciuitable,  upon  the  contract  itself, 

(1)  See  the  remarks  of  Selden,  J.,  in  Bissell  v.  Michig-an  Southern,  etc.,  R.  R., 
22  N.  Y.  258.  This  distinction  is  very  important,  and  a  failure  to  observe  it  has 
led  to  no  little  confusion  in  some  of  the  decisions. 

(2)  Earl  of  Shrewslmiy  v.  North  Stafl'ordshire  R'y  Co.,  L.  R.,  1  Kq.  593  ;  Taylor 
V.  Chichester,  etc.,  R'y  Co.,  L.  R.  2  Exch.  3.j(j ;  Bissell  v.  Southern  Mich.,  etc.,  R. 
R.,  22  N.  Y.  258  ;  Miner's  Ditch  Co.  v.  Zellerbach,  37  Cal.  543,  578,  per  Sawyer, 
C.  J.  ;  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62,  68,  per  Allf.n,  J.,  who  said : 
♦'  When  acts  of  corporations  are  spoken  of  as  ultra  vires,  it  is  not  intended  that 
they  are  unlawful  (qu.  illegal  f),  or  even  such  as  the  corporation  cannot  perform  ; 
but  merely  those  which  are  not  within  the  powers  conferred  ujion  the  corpoi-ation 
by  the  act  of  its  creation."  C.  J.  Sawyer,  in  the  California  case  cited  above, 
describes  the  term  as  containing-  several  degrees  of  incapacity.  An  act  is  ultra 
vires  absolutely,  v/hen  not  within  the  scope  of  the  corporate  powers,  under  any 
circumstances,  or  for  any  pui-pose.  "An  act  is,  also,  sometimes  said  to  be  ultra 
vires  with  reference  to  the  i-ig-hts  of  certain  i)arties,  when  the  corpoi-atiou  is  not 
authorized  to  jjerform  it  without  their  consent ;  or  with  reference  to  some  specific 
punwse,  when  it  is  not  authorized  to  perform  it  for  that  puri)Ose,  although  fully 
within  the  scope  of  the  general  powei-s  of  the  corporation,  with  the  consent  of  the 
parties  interested,  or  for  some  other  purpose."  This  subdivision  and  gradation 
of  the  incapacity  desigTiated  by  the  phrase  ultra  vires,  can,  in  my  opinion,  pro- 
duce only  confusion.  It  is  better  to  confine  the  term  to  the  ab.solute  sense  given 
to  it  above.  Indeed,  where  the  incapacity  depends  upon  some  sjiecial  circnm- 
stances,  and  does  not  exist  under  others,  the  act  cannot  be  correctly  called  ultra 
vires.  gj 


78  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

brought  by  or  against  the  corporation.  In  the  first  and  second  classes 
of  suits  there  can  be  no  doubt  that  acts  in  excess  of  corporate  powers 
will  be  made  the  ground  of  relief;  but  we  are  only  concerned  with 
those  of  the  third  class.  How  far  the  defense  of  ultra  vires  will  be 
admitted  in  actions  brought  to  enforce  contracts  made  by  corporations, 
is  a  question  which  has  given  rise  to  much  discussion  and  to  great 
conflict  of  judicial  opinion.  At  one  time,  the  defense  was  favored 
under  the  notion  that  corporations  would  thereby  be  kept  within  the 
scope  of  their  legitimate  functions.  Not  only  in  suits  by  a  corporation, 
but  also  in  suits  against  a  corporation,  and  even  when  the  defendant 
had  received  and  retained  all  the  benefit  of  the  transaction,  the 
defense  that  the  contract  was  ultra  tires  was  admitted,  and  made  the 
basis  of  refusing  a  recovery.  (1) 

But,  in  more  recent  times,  the  tendency,  both  of  the  English  and  of 
the  American  courts,  has  been  in  another  direction  ;  and,  in  one  of 
the  very  latest  American  decisions,  the  doctrine  is  laid  down  by  the 
court  as  now  settled  that,  in  actions  upon  contracts,  either  by  or 
against  corporations,  where  the  defendant  has  received  the  benefit 
resulting  from  the  agreement,  it  is  no  defense  that  the  contract  was 
not  within  or  incidental  to  the  chartered  powers  or  the  purposes  for 
which  the  corporation  was  created  ;  and  that  the  defense  of  ultra 
vires,  as  a  general  rule,  will  not  prevail  for  or  against  a  corporation 
when  it  will  not  advance  justice,  but,  on  the  contrary,  will  accomplish 
a  legal  wTong.(2)  If  the  defendant  has  received  the  benefit  of  the 
agreement,  it  would  be  a  glaring  injustice  to  allow  a  recovery  on  the 
contract  to  be  defeated,  and  the  benefit  to  be  retained  by  sustaining 
the  defense  of  ultra  vires,  especially  as  such  defense  is  a  matter  which 
only  concerns  the  corporation  in  its  relations  with  the  state  and 
government.  If,  however,  the  contract  is  wholly  executory  on  both 
sides ;  if  it  consists  merely  in  mutual  promises,  and  neither  of  the 
parties  has  given  up  or  received  any  property  in  pursuance  of  its 
stipulations,  there  are  not  the  same  reasons  for  rejecting  the  defense, 
and  the  doctrine  of  the  earlier  cases  will  still  apply  and  prevent  a 

(1)  See  the  cases  cited  in  the  first  note  under  this  paragi-aph. 

(2)  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62,  68,  69 ;  and  see  Ex  parte  Chip- 
pendale, 4  De  G.,  M.  &  G.  19 ;  In  re  National,  etc..  Building  Soc,  L.  R.,  5  Ch. 
309  ;  In  re  Coi-k,  etc.,  Ry.  Co.,  L.  R.,  4  Ch.  748  ;  Eastern  Co.  Ry.  Co.  v.  Hawkes, 
5  H.  L.  Cas.  381,  per  Lord  St.  Leonards;  Bissell  v.  Mich.  So.  etc.,  R.  R.,  22  N. 
Y.  258  ;  Miner's  Ditch  Co.  v.  Zellerbach,  37  Cal.  543.  In  the  last  two  cases,  the 
subject  is  discussed  in  a  most  exhaustive  manner.  Buffet  v.  Troy  and  Boston  R. 
R.,  40  N.  Y.  168. 

82 


UPON  A     VALUABLE   CONSIDERATION.  70 

recovery.  In  the  case  of  municipal  corporations,  it  is  settled  that  the 
strict  rule  should  be  enforced,  and  the  defense  of  ultra  vires  should 
prevail.  The  reason  of  this  distinction  is  found  in  the  ditterent 
nature  and  objects  of  the  corporations  themselves.  Municipal  corpo- 
rations are  parts  of  the  government;  all  their  powers  are  held  in 
trust  for  the  public ;  the  public,  the  state  itself,  is  interested  in  all 
their  acts  ;  and  the  rights  of  the  public,  which  are  paramount  over 
all  private  rights,  are  protected  by  keeping  these  local  governmental 
bodies  within  the  exact  limits  of  their  powers. (1) 


SECTION      II. 

The  contract  must  he  upon  a  valuable  consideration. 

Section  57.  It  is  a  fundamental  principle,  that  equity  will  not 
decree  the  specific  execution  of  a  contract,  unless  the  undertaking  to 
be  enforced  is  founded  upon  a  valuable  consideration,  moving  from 
the  party  on  whose  behalf  the  performance  is  sought ;  in  other  words, 
the  remedy  cannot  be  obtained  for  a  merely  voluntary  agi'eement.(2) 
The  common-law  rule  is  theoretically  the  same,  for  it  does  not  allow 
the  seal  to  take  the  place  of  a  consideration,  but  to  raise  a  conclusive 
presumption  of  its  presence.  Equity,  disregarding  mere  forms,  and 
looking  at  the  reality,  always  requires  an  actual  consideration,  and 
permits  the  want  of  it  to  be  shown,  notwithstanding  the  seal,  and 
applies  this  doctrine  to  covenants,  settlements,  and  executory  con- 
tracts ef  every  description. (3)     In  most  of  the  states,  the  common-law 

(1)  Dillon  on  Munic.  Corpn.,  §§  381.  745),  and  cases  cited. 

(2)  Cochrane  v.  Willis,  84  Beav.  359  ;  Groves  a  Groves,  3  Y.  &  J.  163  ;  Honghton 
D.  Lees,  1  Jur.  (N.  S.)  862  (Stuart,  V.  C);  Ord  v.  Johnson,  1  Jnr.  (N.  S.)  1063 
(Stuart,  V.  C.) ;  Shepherd  v.  Shepherd,  1  Md.  Ch.  244  ;  Valser  v.  VaLser,  23  Miss. 
378  ;  Minturn  v.  Seymour,  4  .Johns.  Ch.  497  ;  Burling-  v.  King-,  66  Barb.  033  ;  Curliii 
V.  Hendricks,  3.^  Tex.  225  ;  Batman  v.  Porter,  100  Mass.  337  (whei-c  the  considera- 
tion failed) ;  [Tunison  v  Bradford,  49  N.  J.  Eq.  210  ;  Burton  v.  Le  Roy,  5  Sawyer. 
510;  Lamprey  tJ.  Lamprey,  29  Minn.  151;  Tucker  v.  Bartie,  85  Mo.  114;  Pi-a1cr 
V.  Seare,  77  Ga.  28.]  Mutual  promises  to  convey  are  a  sufficient  considei-ation. 
Murphy  v.  Rooney,  45  Cal.  78.  See  Ferry  v.  Stephens,  66  N.  Y.  321,  where  a 
contract  was  enforced,  although  no  jirice  had  been,  in  fact,  paid,  or  was  intended 
to  be  paid,  the  vendee  having,  in  th(!  written  agreement,  ^>ro7n y,9<-(i  to  pay  a  cer- 
tain sum,  and  the  vendor  ha\ing  given  a  i-e(;eipt  in  full  foi*  such  sum. 

(3)  Jetireys  v.  Jettreys,  Cr.  &  Ph.  138 ;  Ht^rvey  v.  Audland,  14  Sim.  531  ; 
Meek  v.  Kettlewell,  1  Ph.  342  ;  1  Ila.  464.  In  Ord  v.  .Johnston,  1  Jur.  (N.  S.)  1063, 
1865,  V.  C.  Stuart  said:  "This  court  never  interferes  in  supj-ort  of  a  purely 
voluntary  agreement,  or  where  no  consideration  emanates  from  the  individual 
seeking  the  performance  of  the  agreement."  In  Houghton  v.  Lees,  1  Jin\  (N.  S.) 
.862,  863,  the  same  able  equity  judge  said  :  "Of  the  general  doctiine  of  the  court, 
on  this  subject,  there  is  no  doubt  whatever.     This  court  will  not  perform  a  vokm- 

83 


80  SPECIFIC   PERFORMANCK    OF   CONTRACTS. 

efficacy  of  the  seal  has  been  abolished  by  statutes.     It  is  made  to 
ci'eate  a  prima  facie  presumption  only  of  ;i  valuable    consideration, 

tai-y  jiirreement,  or,  what  is  luui-e,  a  voluiitaiy  cov^eiiaiit  uudei"  .seal.     Want  of 
consideration  is  a  sufficient  reason  for  refusing  the  assistance  of  the  court."     The 
full  docti'iiie  was  stated  by  Lord  Ch.  Cottenham,  while  refusing  to  enforce  a  volun- 
tary settlement,  in  Jeflerys  v.  Jeflerys,  Cr.  &;  Ph.  138,  141:  "I   have   no   doubt 
that  the  court  will  not  execute  a  voluntary  contract ;  and  my  impression  is,  that 
the  jirinciple  of  the  court,  to  withhold   its   assistance  from  a  volunteer,  applies 
equally  whether  he  seeks  to  have  the  benefit  of  a  contract,  a  covenant,  or  a  settle- 
ment."    The  same  principle  is  recognized  or  applied  in  most  of  the  older  cases. 
See  Wycherley  v.  Wycherley,  2  Eden,  177,  per   Ld.  Northington  ;  Fursaker  v. 
Robinson,  Prec.   in   Ch.  475;  Peacock  v.  Monk,  1  Ves.  Sen.  133;  Underwood  •». 
Hitchcox,  1  Ves.  Sen.  280 ;  Griffin  v.  Nanson,  4  Ves.  344  ;  Penn  v.  Lord  Baltimore, 
1  Ves.  Sen.  450  ;  Williamson  v.  Codrington,  1  Ves.  Sen.  514  ;  Stapilton  v.  Stapilton, 
1  Atk.  10.     In  a  few  of  the   early  cases,  before   the  jurisdiction   of  etiuity  was 
clearly  settled,  it  was  held  that  voluntary  agreements,  if  under  seal,  should   be 
enforced  ;  but  these  decisions  and  dicta  have  long  since   been  overruled  ;  as,  for 
example,  see  Beard  v.  Nutthall,  1  Vern.  427  ;  Wiseman  v.  Roper,  1  Ch.  Cas.  84; 
Tyi-rell  v.  Hope,  2  Atk.  562  ;  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  176  ;; 
Husband  v.  Pollard,  cited  in  2  P.  Wms.  467.     In  Estate  of  Webb,  49  Cal.  541,  545, 
per  Crockett,  J. :  "  In  such  cases  the  point  to  be  determined  is,  whether  the  trust 
has  been  pei-fectly  created,  that  is  to  say,  whether  the  title  has  passed  and  the 
trust  been  declared,  and  the  trust  being  executed,  nothing  remains  for  the  court, 
but  to  enforce  it.     In  discussing  this  question,  the  court  say,  in  Stone  v.  Hackett, 
12  Gray,  227  :  '  It  is  certainly  true  that  a  court  of  equity  will  lend  no  assistance 
toward  .perfecting  a  voluntary  contract  or  agreement  for  the  creation  of  a  trust, 
nor  regard  it  as  bihding,  so  long  as  it  remains  executory.     But  it  is  equally  true,, 
that  if  such  a  contract  be  executed  by  a  conveyance  of  property  in  trust,  so  that 
nothing  remains  to  be  done  by  the  grantor  or  donor  to  complete  the  transfer  of 
title,  the  relation  of  trustee  and  cestui  que  trtist  is  deemed  to  be  established,  and 
the  equitable  rights  and  interests  arising  out  of  the  conveyance,  though  made 
without  consideration,  will  be  enforced  in  chancery.'    The   same   proposition   is, 
announced,  and  the  authorities  fully  collated  and  examined,  in  Kekewich  v.  Man- 
ning, 1  DeG.  M.  &  G.  176  ;  Jones  v.  Lock,  L.  R.  1  Ch.  25,  and  Wason  v.  Colburn, 
99  Mass.  342.   *  *  *    This  was  not  an  executed  trust,  but  at  most  nothing  more 
than  a  voluntary,  executory  agreement   to   ereate   a   trust   in  fiituro,  and   such 
agreements  cannot  be  enforced  in  equity."     There  is,  however,  a  distinction  in 
respect  to  the  consideration,  between  executed  and  executory  agreements.     Exe- 
cuted agreements,  although  voluntary,  may  raise  a  trust  which  will  be  enforced 
in  equity.     An  executoiy  agreement,  in  order  to  be  enforced,  must  have  a  valu- 
able considaration.     Even  in  the  first  class,  it  is  not  the  agreement  itself  Vihich  is 
specifically  enforced,  and  the  jurisdiction  of  equity  over  them  belongs  to  the  doc- 
trine of  trusts.     See   Bunn  v.  Winthrop.  1   John.  Ch.  329  ;  Hayes  v.  Kershaw,  1 
Sandf.  Ch.   258  ;  Meek  v.  Kettlewell,  1   Ph.  342  ;  1    Ha.  464 ;  McFadden   v.  Jen- 
kyns,  1   Ha.  462 ;  Fletcher  v.  Fletcher,  4  Ha.  67  ;  Hill  v.  Gomme,  1  Beav.  540 ; 
Davenport  v.  Bishop,  2  Y.  &  C.  C.  C.  451  ;  Colhnson  v.  Pati-ick,  2  Keen,  123  ;  God- 
sal  V.  Webb,  ib.    99  ;  Colyear  v.  Countess  of  Mulgrave,  ib.  81 ;  Doungsworth  ^v 
Blair,  1  Keen,  795  ;  Blakely  v.  Brady,  2  Dr.  &  Wal.  311.     [That  a  voluntary  writtea 
agreement  to  convey  may  come  under  the  operation  of  the  doctrine  of  part  per- 
formance, in  the  same  manner  as  a  parol  gift,  see  Tunison  t>.  Bradford,  49  N.  J- 
Eq.  210 ;  Hagar  v.  Hagar,  71  Mo.  610 ;  Studer  v.  Seyer,  69  Ga.  247  ;  Griggsby  Vi 
Osbom,  82  Va.  371 ;  Halsey  v.  Peters,  79  Va.  60.] 

84 


TirE  coyTRArr  yrusT  i;r  coxcLunKD.  8t 

whicli  may  l>e  ovorcoiuc  l>y  ovidcnci^ ;  aii<l  tliis  statutory  oiVcrf  is 
fxt-ended  to  all  actions  I'ouikIimI  uikiu  cimtract,  \vli"tiier  legal  or  equi- 
table. The  practical  result  of  this  leg-islation  is,  that  in  actions  ui)ou 
sealed  ag-reenieiits,  tlie  bunh^i  of  proof,  in  reg-ard  to  a  cousith'rat  ion, 
is  shifted  from  the  plaiutilf  to  tlie  defendant. (1)  Although  there 
must  be  a  valuable  consideration,  it  need  not  be  pecuniary.  In  family 
an-angements,  agreements  for  tlie  settlement  of  actual  or  possible  con- 
troversies, and  the  like,  a  slight  consideration  is  suflicient,  and  the 
court  requires  but  little  to  uphold  and  enforce  a  compromise  fairly  and 
deliberately  made.  In  all  such  cases  the  contract  is,  of  course,  not  a 
'^*  voluntary  "  one. (2) 


SECTION  III. 


A  contract  must  he  actually  concluded  between  the  parties,  with  tlie  requi- 
site formalities ;  there  must  he  an  "  aggregatio  m,entium "  upon  the 
same  matters. 

Section  58.  A  contract  must  be  actually  concluded,  for  otherwise 
"there  are  no  rights  upon  which  the  equitable  remedy  can  operate. 
""An  agreement  is  the  result  of  the  mutual  assent  of  two  parties  to 
certain  terms,  and  if  it  be  clear  that  there  is  no  consensus,  what  may 
have  been  written  or  said  becomes  immaterial. "(3)  Whenever,  there- 
fore, the  transaction  has  not  passed  beyond  the  condition  of  negotia- 
tion or  treaty,  there  can  be  no  specific  performance.     And  if  it  is  left 

(1)  R.  S.  of  N.  Y.  V.  2,  ]i.  400,  §  77  :  "  In  evoiy  action  upon  a  sealed  instrument, 
and  when  a  set-off  is  founded  upon  any  sealed  instrument,  the  seal  thereof  shall 
only  be  presumjitive  eviden(;e  of  a  sufficient  consideration,  which  may  be  rebutted 
in  the  same  manner  and  to  the  same  extent,  as  if  such  instrument  were  not 
.sealed."  See,  construing'  this  section,  Wilson  v.  Baptist  Education  Soc,  10  Barb. 
308;  Alabarim—Rev.  Code  (1867),  p.  526,  §  2632;  37;e/<;,9a7i—Comp.  Law  (1871},  v. 
2,  p.  1710,  §  90  ;  Oregon— Gen.  Laws  (1872),  p.  2.')8,  §  743  ;  Ze-im— Pasch.  Difr.  v. 
1,  §  228.  In  several  states,  the  distinction  between  sealed  and  unsealed  instru- 
ments is  abolished,  and  a  want  of  consideration:  can  always  be  shown  as  a  defense, 
except  in  the  ordinary  case  of  negotiable  paper.  California — Civ  Code,  §  1620  ; 
Indiana— 2  R.  S.  (G.  &  H.)  p.  180,  §  273;  Iowa-  Rev.  Code  (1873),  p.  383, 
§§  2112,  2113,  2114  ;  Kamas—G^n.  Stat.  (1868)  p.  183,  §§  6,  7,  8  ;  lumtiicki/—!  R. 
S.  (Stanton's)  p.  267,  §§  2,  3 ;  Nebra-ska—Gcen.  Stat.  (1873)  ji.  1001 ;  Tennessee- 
Gen.  Stat.  (1871)  §§  1804,  1806  ;  Ze.ra.v— Pasch.  Dig.,  v.  1,  §  5087  (on  contracts  and 
.conveyances  "  respecting  real  or  personal  property  "). 

(2)  For  an  illustration,  see  Houghton  v.  Lees,  1  Jur.  (N.  S.)  862. 

(3)  Per  Ld.  Ch.  Wkstbury,  in  Chinnock  ?).  Marchioness  of  Ely,  4  De  G.,  J;  &  S. 

^638,  643. 

85 


82  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

doubtful,  from  all  the  evidence  in  a  case,  whether  a  contract  was  con- 
cluded ornot,  equity  will  not  gi-ant  its  specific  relief.(l)  When  the 
parties  have,  at  the  same  time,  executed  a  written  instrument  which 
sets  forth,  in  a  formal  manner,  the  terms  of  the  agreement,  there  can 
hardly  be  any  doubt  or  difficulty  as  to  the  fact  of  its  actual  conclu- 
sion. The  practical  questions  connected  with  this  branch  of  the 
subject  arise  upon  contracts  which  are  claimed  to  have  resulted  from 
negotiation,  correspondence,  conversation,  or  other  analogous  acts, 
through  which  the  final  assent  of  the  parties  to  the  same  terms  may 
be  brought  about  and  expressed.  The  various  modes  through  which 
the  agreement  of  the  two  minds  may  be  produced,  the  mutual  assent 
reached,  and  contract  thereby  concluded,  may  be  reduced  to  a  few 
generic  classes;  and  I  shall  examine  the  important  questions  pre- 
sented by  each  class  separately. 

Offer  and  acceptance. 

fcjEC.  50.  1.  Contracts  resulting  from  negotiations,  whether  written 
or  verbal,  when  reduced  to  their  elements,  generally  consist  of  an 
offer  and  an  acceptance.  The  general  rules,  to  which  attention  is  now 
called,  are  equally  applicable,  whether  the  offer  and  acceptance  are 
made  and  the  negotiation  conducted  by  writings  or  by  conversation ; 
the  particular  modifications  introduced  by  the  requirements  of  the 
statute  of  frauds  will  be  considered  in  a  subsequent  part  of  the  sec- 
tion. An  offer  or  proposal  made  by  one  party,  and  the  acceptance 
thereof  by  the  other,  constitute  a  contract;  in  other  w^ords,  a  contract 
is  thereby  concluded,  so  that  it  may  be  enforced.(2)  By  these  means 
the  minds  of  the  parties  meet,  and  their  mutual  assent  is  obtained  in 
respect  to  the  same  terms  and  subject-matter.  I  shall  discuss  :  1,  the 
nature  and  incidents  of  the  offer ;  2,  the  nature  and  incidents  of  the 
acceptance ;  and  3,  the  time  when  they  become  effective  in  producing 
a  contract. 

Nature  and  incidents  of  the  offer. 

Sec.  60.  The  offer  or  projDOsal  has,  before  acceptance,  no  binding 
force  or  effect.  Even  when  promissory  in  its  form,  it  is,  at  most,  a 
unilateral  promise,  without  consideration.  It  is  an  act  of  one  party 
alone,  and  requires  the  corresponding  act  of  the  other  party  in  order 
to  produce  the  nmtual  assent,  and  to  give  it  a  legal  validity  as  a  con- 

(1)  Stratfor<l  v.  Bosworth,  2  V.  &  B.  341 ;  Huddleston  v.  Briscoe,  11  Ves.  583, 
.591 ;  Carr  v.  Duval,  14  Pet.  77.  [See,  also,  Pacitic  R.  M  Co.  i\  Railway  Co.,  90 
Cal.  627  ;  Hennessy  v.  Woolworth,  128  U.  S.  438.  The  contract  must  amount  to 
more  than  an  expression  of  intention  :  Recknagle  v.  Schmalz,  72  Iowa,  63  ;  Thomas 
V.  Griffith,  68  Iowa,  63  ;  Dickman  v.  Birkhaiiser,  16  Nebr.  686  ;  Cassell  v.  Cassell, 
104  111.  361  (intention  of  father  to  convey  land  to  his  son) ;  Galloway  v.  Galloway, 
104  111.  27.5  (same) ;  and  see  Irwin  v.  Bailey.  72  Ala.  467 ;  Goodlett  v.  Hansell,  66 
Ala.  151  ;  McPherson  v.  Wiswell,  16  Nebr.*625  ;  Derrick  v.  Monette,  73  AJa.  75.] 

(2)  Kennedy  v.  Lee,  3  Mer.  441. 

86 


THE    CONTRACT  MUST  UK   CONCLUDED.  83 

stituent  jtavt  of  a  contract.  Wliou  the  ])i'()posal  is  in  Avrititi^^,  it 
acquires,  as  such,  no  higher  or  more  compulsory  character.  It  lias 
none  of  the  qualities  which  belong  to  a  written  memoranduuj  of  an 
agreenient.(l)  The  offer  is,  while  it  remains  sucli,  completely  under 
the  control  of  the  person  who  makes  it. 

Ho-w  may  it  be  terminated? 

8ec.  61.  The  ju-oposal  m;iy  be  ended  by  a  withdrawal ;  by  a 
refusal  on  the  part  <if  the  ])erson  to  whom  it  is  made  ;  and  by  an 
unraasonable  delay ;  and,  after  it  is  thus  terminated,  no  accept- 
ance or  offer  to  accept  is  operative.  By  wU/uhawal.  As  the  offer 
is  not  in  any  sense  binding,  the  person  who  makes  it  may,  at  any 
time  before  a  valid  acceptance  has  changed  its  character,  withdraw  it 
and  thus  put  an  end  to  the  negotiation  ;  he  can  do  this  whatever  be 
its  form,  whether  promissory  or  not,  and  without  any  reason  except 
his  own  will. (2)  Although  the  person  to  whom  tV»e  offer  was  made 
may  have  intended,  and  even  attempted,  to  accept,  still  if  the  accept- 
ance was  for  any  reason  imperfect  and  not  binding,  so  that  no  contract 

(1)  In  Warner  v.  Willington,  3  Drew.  531,  V.  C.  Kindersley  said :  "  lu  the 
case  of  an  offer,  no  doubt  the  jiarty  signing  it  may,  at  any  time  before  acceptance, 
retract ;  but  if  it  be  an  agreement,  though  signed  by  one  party  alone,  he  cannot 
reti'act  at  his  pleasure,  but  all  he  can  do  is  to  call  upon  the  other  party  to  sign  or 
rescind  the  agreement.  A  memorandum  of  an  agreement  supposes  that  the  two 
parties  have  vei-bally  made  an  actual  contract  with  each  other  ;  and  when  the 
terms  of  such  contract  are  reduced  into  writing  and  signed,  that  is  sufficient  to 
hind  the  party  signing;  but  if  the  memorandum  is  of  an  offer  only,  that  assumes 
that  thei"e  has  been  no  actual  contract  between  the  i>arties."  And  see  Meynell  v, 
Surtees,  1  Jur.  (N.  S.)  737  ;  Ilorsfall  v.  Garnett,  (5  W.  R.  (1857-S),  387  ;  Tucker  v. 
"Wood,  12  John.  190  ;  Bower  v.  Blessing,  8  S.  &  R.  243.  In  Runmicns  v.  Rol)bins, 
3  De  G.,  J.  &  S.  88,  the  ofier  was,  in  form,  a  contrac-t  of  sale  containing  special 
clauses,  submitted  by  the  owner  to  the  proposed  iJin-chaser  for  his  approval. 
L.  J.  Knight  Bkuce  said-  (p.  95)  :  "  It  was  re(iuisite  that  the  jilaintitf 's  acces- 
sion to  these  terms  [of  said  proposed  contract]  should  be  obtained ;  and  until 
that  accession  should  be  obtained,  this  conti-act  was  a  ni(>ro  ])i'iipfisal  —  a  mere 
proposal  of  terms  by  a  jierson  not  then  b()un<l.'" 

(2)  Dickenson  v.  Dodds,  L.  11.  2  Ch.  D.  403  ;  Runnnons  v.  Robbins,  3  De  G.  J.  & 
K.  88,  95;  Thombury  v.  Bevill,  1  Y.  &  0.  C.  C.  554;  Meynell  v.  Surtees,  1  Jur. 
(N.  S.)  737;  Warner  c.  Willington,  3  Drew.  523;  Mactier  r.  Frith,  (i  Wcn.l.  103; 
[Isham  V.  Therasson  (N.  J.  Eq.),  30  Atl.  Rep.  909  (Jan.  J5,  J895).J  In  Rumm.'us 
■J'.  Robbins,  3  De  G.  J.  &  S.  88,  an  offer  in  tlu;  shajie  of  a  contract  submitted  to  th<! 
proposed  purchaser  for  his  approval,  was  withdrawn  before  acceptance  by  the 
intended  vendor,  by  means  of  a  writttMi  notice ;  per  L.  J.  Kxkjht  Bkuck,  p.  95  : 
"  Now  this  was  what  the  writers  of  tlu^  hitter  had  a  right  to  do,  for  they  were  Tiot 
hound  until  their  proposal  was  capable  of  being  validly  acce^jtcid  an<l  had  been 
accepted,  and  two  months  had  jiasscMl  without  thc^  plaintiffs  intimating  any  aci-ept- 
ance.  The  attorneys  then  on  Ixilialf  of  the  vendors  were  acting  in  tlu^  dear 
exercise  of  theii"  right  in  witiidrawing  the  ])i-opo.sal  and  in  refusing  to  have  any- 
thing more  to  do  with  it.  It  was  then  in  vain  for  tlie  iilaintiff  to  caiTy  on  a 
corresponihiuce  according  to  thr  proposed  conti-act  which  had  been  left  two 
months  without  being  acceded  to." 

87 


84  SPECIFIC   PERFOIiMANCE    OF   CONTRACTS. 

was  concluded,  the  power  of  withdrawal  remains  unaflfected,(l)  If 
the  offer,  in  express  terms,  s})ecifies  the  time  within  which  the  accept- 
ance may  be  or  must  be  made  ;  or,  in  other  words,  states  the  i)eriod 
during  which  it  will  remain  open,  the  power  of  withdrawal  is  not 
thereby  restricted,  but  may  be  exercised  at  any  time  before  an  accept- 
ance and  before  the  limitation  has  expired. (2)  No  formal  notice  is 
necessary  to  constitute  a  withdraw^al.  It  is  sufficient  that  the  person 
making  the  offer  does  some  act  inconsistent  wirh  it — as,  for  example, 
sells  the  property  in  question  to  another  purchaser,  and  that  the 
person  to  whom  the  offer  was  made  has  knowledge  of  such  act. 
Indeed,  it  appears  that  a  sale  of  the  property  to  a  third  person  would, 
of  itself,  be  a  withdrawal,  although  made  without  the  knowledge  of 
the  originally  intended  vendee. (3) 
By  a  refusal. 

Sec.  62.  A  refusal  to  accept  by  the  person  to  whom  the  pro- 
posal is  made,  terminates  the  offer,  and  no  subsequent  readiness 
to  accept  or  acceptance  will  avail  to  conclude  a  contract  upon  the 
basis  of  such  original  offer. (4)  The  proposal  may,  of  course,  renew 
aud    thus    commence    the    negotiation.       It    would   appear    that,    to 

(1)  In  most  of  the  cases  which  turn  upon  a  withdrawal,  it  will  be  found  that 
there  was  some  attempt  to  accept — .^ome  act  claimed  to  have  been  an  acceptance. 
Rummens  v.  Robbing,  3  De  G.  J.  &  S.  88  ;  Warner  v.  Willing-ton,  3  Drew.  523. 

(2)  Routledg-e  v.  Grant,  4  Bing-.  653  ;  Cooke  v.  Oxley,  3  T.  R.  G53  ;  Dickenson  r. 
Dodds,  L.  R.  2  Ch.  D.  463  :  Boston  &  Me.  R.  R.  v.  Bartlett,  3  Cush.  224  ;  [Coleman 
V.  Applegarth,  68  Md.  21.  See,  also,  Weaver  v  Burr,  31  W.  Va.  736.]  In  Dicken- 
.son  1).  Dodds  the  owner  of  jjroperty  signed  a  paper  which  purported  to  be  an 
agreement  to  sell  at  a  fixed  price,  but  included  :  "This  offer  to  be  left  over  until 
Friday,  9  A.  m."  Before  that  time  he  sold  the  property  to  another  jierson.  After 
this  sale,  the  one  to  whom  the  first  offer  was  made  announced  his  acceptance,  and 
bi'ought  ix\\  action  to  compel  a  specific  performance.  Held,  that  the  offer  was 
properly  withdra\vn,  and  that  no  contract  arose  from  the  plaintiff's  subsequent 
acceptance.  In  Boston  &  Me.  R.  R.  v.  Bartlett,  an  ofler  was  given  to  sell  certain 
land  at  a  specified  price,  the  answer  to  be  given  in  thirty  days.  Held,  that  such 
offer  was  a  continuing  one ;  "  during  the  whole  of  that  time  it  was  an  offer  every 
instant ; "  but  it  might  be  withdrawn  at  any  time  before  acceptance.  If  imrevoked 
at  the  time  of  acceptance,  it  would  become  a  concluded  contract. 

(3)  Dickenson  v.  Dodds,  L.  R.  2  Ch.  D.  463.  Facts  are  stated  in  the  last  note. 
Held,  that  an  offer  to  sell  may  be  withdrawn  before  acceptance  without  any 
formal  notice  to  the  party  to  whom  it  was  made.  It  is  suflicient  if  that  person 
has  knowledge  that  the  vendor  has  done  some  act  inconsistent  with  the  offer — 
e.  g.,  selling  the  property  to  a  thii-d  person.  [To  the  same  effect,  see  Coleman  v. 
Applegarth,  68  Md.  21.  See,  also,  Childs  v.  Gillespie  (Pa.),  23  Atl.  Rep.  312.] 
Senible,  a  sale  to  a  third  person  would  be  a  withdrawal,  even  though  the  first 
vendee  had  no  knowledg  >  of  it.  The  act  of  the  vendor,  in  this  case,  amoimteil  to 
an  offer  which  was  effectually  withdi-awu. 

(4)  Hyde  v.  Wrench,  3  Beav.  334  ;  Frith  v.  bawrence,  1  Paige,  434. 


THE    CONTRACT  MUST  BR    COSCLVDED.  85 

]irodiice  the  effect  above  mentioned,  the  refusal  must  be  positive, 
intended  as  a  rejection,  and  not  merely  as  a  su','-^''ested  modification 
of  the  proiiosed  terms,  while  the  original  offer  remains  in  abeyance, 
to  be  i'luthci'  considered  and  perhaps  accepted,  if  the  suggestion  is 
not  approved.  There  are  many  cases  in  which  the  offer  as  first  made 
has  been  accepted,  and  a  contract  thereby  concluded,  after  alterations 
in  it  had  been  unsuccessfully  attempted  by  the  intended  purchaser. 
In  all  such  cases  the  offer  must,  of  course,  remain  unrevoked.  As 
the  person  to  whom  an  offer  is  made,  may,  instead  of  accepting  or 
rejecting  it,  suggest  some  variation  or  addition,  so  the  original  pro- 
poser may,  instead  of  wholly  withdrawing  his  offer,  modify  it  at  any 
time  and  in  any  manner  before  acceptance,  by  adding,  omitting,  or 
altering  terms,  and  in  either  case  the  transaction  continues  to  be 
mere  negotiation  until  the  point  is  reached  where  an  offer  as  made 
on  one  side  is  accepted  on  the  other,  and  a  contract  is  thn-eby  con- 
cluded.(1)  By  delay.  The  offer  is,  also,  terminated  by  unreasonable 
delay  on  the  part  of  the  person  to  whom  it  is  made.  This  proposition 
is  identical  with  the  rule  that  the  acceptance  must  be  made  within  a 
reasonable  time,  the  discussion  of  which  is  found  in  a  subsequent 
paragraph.  (2) 

Nature  and  incidents  of  the  acceptance. 

►Sec.  63.  As  the  acceptance  is  the  means  by  which  the  minds  of  two 
2)arties  are  brought  to  an  agreement,  it  must  be  so  expressed  as  to  show- 
that  there  is  an  actual  assent,  a  meeting  of  the  two  minds,  and  that 
tlu^re  is  an  assent  upon  exactly  the  same  matters.     To  produce  a  con- 

(1)  Honey  man -u.  Marryatt,  21  Beav.  14  ;  6  H.  L.  Cas.  112,  illusti-ates  such  a 
variation  Ly  the  vendor.  Marryatt  advertised  an  estate  for  sale.  Honeynian 
]iroposed  to  purchase  it  and  offered  to  pay  a  certain  price.  M's  ajjent  wi-ote, 
April  4th,  to  H's  solicitor :  "  Mr.  M.  has  authorized  us  to  accept  the  otler,  subject 
to  the  terms  of  a  contract  being-  arranged  between  his  solicitor  and  youi-self.  Mr. 
M.  recjuires  a  deposit  of  from  1,200Z.  to  1,500?.,  and  the  purchase  to  be  coniplet«'d 
at  midsummer  day  next."  A  correspondence  followed,  H.  obje(;ting  to  the 
deposit.  M.,  thereupon,  before  any  acceptance,  required  1500L  deposit,  and  the 
purchase  to  be  completed  on  April  27th,  and  that  the  deposit  should  be  jiaiil  and 
the  ag-reement  signed  before  a  given  day  or  the  treaty  would  be  at  an  end.  II. 
did  not  comply  with  these  tei-ms,  but  subsequently  offered  to  pay  the  deposit  ami 
sign  the  agreement,  which  M.  refused.  On  a  bill  tiled  by  H.  tlie  M.  R.  held  that 
the  words,  "subject  to  the  terms  of  a  contract  being  arranged  l)etween  his  solici- 
tor and  yourself."  prevented  the  letter  of  April  4th  from  constituting  an  absolute 
contract,  and  that  M.  had  a  right  afterwards  to  add  the  terms  as  to  the  deposit 
and  the  day  for  comi)leting  the  contract ;  and  so  dismissed  the  bill.  This 
decision  was  affirmed  in  the  House  of  Lords. 

(2)  See  infra,  §  Co. 


86  SPECIFIC    PERFORMANCE    OF  CONTRACTS. 

eluded  contract  the  acceptance  must,  therefore,  possess  certain  funda- 
mental requisites.  l^^ir$t.  It  must  be  absolute,  unambiguous,  unequivo- 
cal, without  condition  or  reservation. (1)   There  is  an  apparent,  but  not 

(1)  Chinnock  v.  Miirchioniiss  of  Ely,  4  De  G.  J.  &  S.  638,  646  ;  Crossley  v  May- 
cock,  L.  R.  18  Eq.  180 ;  Kennedy  v.  Lee,  8  Mer.  441 ;  Thoi-nbury  v.  Bevill,  1  Y. 
&  C.  C.  C.  554  ;  Gaskarth  v.  Lord  Lowther,  12  Ves.  107 ;  Warner  v.  Willington,. 
3  Drew,  .523 ;  Horsfall  v.  Gamett,  6  W.  R.  (1857-8)  387 ;  Thomas  v.  Blackman,  1 
Coll.  C.  C.  301;  [Braeiitigam  v.  Edwards,  38  N.  J.  Eq.;  Langellier  v.  Langellier,  "6 
Minn.  361 ;  Hamlin  v.  Wl.'^tar,  31  Minn.  418  ;  Amot'sCase,  36  Ch.  D.  702  ;  Chapman 
V.  Morg-an,  55  Mich.  124  ;  Mclntyre  v.  Hood,  9  Can.  S.  C.  R.  556  ;  Strange  r. 
Crowley,  91  Mo.  287].  In  Crossley  v.  Maycock,  supra,  plaintiff  had  made  an  offer  to 
purchase.  The  vendors  answered  by  a  letter  acknowledging-  the  receipt  of  such 
offer,  and  adding  :  "Which  offer  we  accept,  and  now  hand  you  two  cojiies  of  con- 
ditions of  sale,"  and  inclosed  a  formal  agi-eement  containing  special  conditions.  In 
a  bill  for  specific  performance  by  the  vendee,  this  was  held  by  Je.ssbl,  M.  R.,  to 
be  only  a  conditional  acceptance,  and  that  no  contract  was  concluded  by  it.  In 
Chinnock  v.  Mai-chioness  of  Ely,  supra,  defendant  authorized  an  agent  to  offer 
her  house  for  sale  at  10,000^.,  but  gave  him  no  authority  to  enter  into  a  contract. 
The  plaintiff  gave  this  agent  the  following  wi-iting  :  "  November  11,  1863.  I  agree 
to  give  you  the  price  which  you  are  authorized  to  accejit  for  this  house,  etc. 
(description),  viz.,  10,000?.,  to  include  the  usual  tenants  fixtures  ;  possession  as 
early  in  March  as  can  be  arranged.  I  shall  be  obliged,  if  you  would  forward  me 
the  usual  contract  "  (signed,  etc.).  This  did  not  constitute  a  contract,  for  plaintiff 
was  informed  that  the  agent  had  no  authority.  This  writing  was,  in  fact,  an 
offer  from  the  plaintiff.  The  defendant,  at  this  period  of  the  negotiation,  changed 
her  mind,  and  did  not  want  to  sell,  but  was  willing  to  proceed  if  her  solicitor 
thought  she  could  not  honorably  recede.  The  plaintiff  declining  to  abandon  the 
intended  purchase,  the  defendant's  solicitors  wrote  him  the  following  letter  : 
"  Nov.  19th,  1863.  F.  Chinnock,  Esq.  We  have  been  instructed  by  the  Mar- 
chioness of  Ely  to  proceed  with  the  sale  to  you  of  these  premises.  The  draft  con- 
tract is  being  prepared,  and  will  be  forwarded  to  you  for  approval  in  a  few  days  " 
(signed,  etc.).  Plaintifl",  on  a  bill  for  a  specific  performance,  claimed  that  this 
last  letter  was  either  a  clear  recognition  of  the  fact  that  there  had  been  a  com- 
jilete  sale  to  the  plaintifl',  or  else  it  amounted  to  an  acceptance  of  plaintiff's  oflei-  in 
his  letter  dated  November  11th.  Of  this  contention,  Ld.  Chancellor  Westbury  said, 
p.  645 :  "  It  is  clear,  in  the  first  place,  that  if  at  the  time  of  writing  this  letter 
there  was  no  sale,  in  the  sense  of  concluded  contract,  between  the  plaintiff  and 
defendant,  then  the  words 'to  proceed  with  the  sale,' fairly  interpreted,  must 
mean  to  go  on  with  matters  as  they  then  stood ;  and  if  they  were  then  in 
treaty  only,  the  words  will  mean  to  go  on  with  that  treaty.  My  judgment  is, 
that  the  words  mean  merely  '  we  are  instructed  to  go  on,'  and  that  they  were- 
written  with  reference  to  the  fact  that  the  former  proceedings  had  been  inter- 
rupted by  a  temporary  change  of  pui-jwse  on  the  part  of  the  defendant.  But 
whether  the  words  are  taken  in  the  one  sense  or  the  other,  they  cannot  be  severed 
from  the  rest  of  the  letter,  which  describes  the  manner  in  which  the  sale  was  to  be 
proceeded  with,  viz.,  by  the  preparation  of  a  draft  contract  which  should  be  for- 
warded to  the  plaintiff  for  approval.  Putting,  therefore,  the  plaintiff's  own 
intei-pretation  on  the  first  sentence  of  the  letter,  but  adding  to  it  that  which 
follows,  the  fair  and  just  meaning  and  effect  of  the  whole  letter  will  be  :  '  We  will 
accept  your  terms  of  purchase,  if  you  agree  to  the  draft  contract  we  are  about  to 
send  to  you.'  So  construed,  the  approval  of  the  draft  contract  is  a  term  of  the 
defendant's  assent."  The  Lord  Chancelloi-  then  admits  the  correctness  of  a  rule 
90 


THE    CONTRACT  MUST   UK    COXCIA'PKI).  87 

real,  limitation  upon  lliis  doctriiu',  which  should  be  noticed  in  this  con- 
nection. A  contract  may  be  concluded  and  binding'',  althou<,''h,  by  its 
very  terms  or  by  a  collateral  stipulation,  soniethini,'"  more  is  to  be  done 

to  be  stated  hereut'ter,  and  iirciceeds  :  "  But  if  to  a  jii-ojjosal  or  oU'ei-  an  assent  be 
given,  subject  to  a  provision  as  to  a  conti-act,  tlien  the  stipulation  as  to  tlie  con- 
traet  is  a  term  of  the  assent,  and  there  is  no  agreement  independent  of  that  stip- 
ulation. And  this  appears  to  me  to  be  the  real  state  of  the  ease  before  me,  for  I 
am  clearly  of  o{)inion  that  the  true  and  fair  meaning-  ami  legal  eflect  of  the 
letter  of  the  19th  November,  may  be  expressed  in  these  words:  '  I  will  g^o  on 
■with  the  treaty  for  the  sale  to  you  of  my  house,  and  for  that  jiurp()s<!  will  send  to 
you  the  form  of  the  contract  which  I  am  willing  to  enter  into.'  I  take,  therefore, 
the  letter  of  the  19th  November,  either  as  a  conditional  acceptance  of  the  plain- 
tift"'s  terms,  subject  to  the  tlraft  contract  being-  agreed  to,  or  as  an  expression  of 
willingness  to  continue  the  negotiation,  and  for  that  pui-])ose  to  projiose  a  form  of 
agreement."  The  case  of  Ridgway  t\  Wharton,  G  H.  L.  Cas.  238,  is  very  instruc- 
tive, although  the  discussions  largely  turned  upon  disx)uted  questions  of  fact.  The 
plaintitf  had  a  negotiation  v.'ith  an  agent  of  the  defendant  for  a  lease  ;  certain 
jireliminaries,  at  least,  wei-e  agreed  upon,  and  these  terms  were  sent  to  a  solicitor 
for  him  to  draw  ii  contract.  The  principal  matter  in  dispute  was  whether  plain- 
tiff and  the  agent  had  concluded  any  contract  which  was  simply  to  be  put 
into  shape  by  the  solicitor,  or  whether  no  final  agreement  was  concluded,  but 
the  solicitor  was  to  draw  up  one  which  would  be  presented  to  the  plaintiff  for 
bis  acceptance.  A  majority  of  the  judges  reached  the  latter  conclusion  from 
the  evidence.  Lord  "NVexsleydale,  in  his  opinion,  laid  down  the  following  general 
doctrines  (p.  805):  "An  agreement  to  be  tinally  settled  must  comprise  all  the 
terms  which  the  parties  intend  to  introduce  into  the  agreement.  An  agreement 
to  enter  into  an  agi-eement  upon  terms  to  be  afterwards  settled  between  the 
parties,  is  a  contradicticn  in  terms.  It  is  absurd  to  say  that  a  man  enters  into  an 
agreement  till  the  terms  of  that  agreement  are  settled.  Until  those  terms  are 
settled,  he  is  perfectly  at  liberty  to  retire  from  the  bargain.  Now,  in  this  case  it 
is  clear  that,  from  the  first,  this  was  not  an  agreement  for  a  lease,  which  lease, 
according-  to  the  state  of  the  law  at  that  time,  must  have  been  a  lease  by  deed, 
but  merely  an  agi-eement  to  enter  into  an  agi-eement  to  be  afterwai'ds  drawn  up 
by  a  solicitor.  Then  that  comes  to  a  i)ure  question  of  fact,  whether  the  jiarties 
intended  that  the  agreement  to  be  so  di-awn  iq)  should  embody  what  they  agreed 
upon,  and  that  they  should  not  be  bound  till  the  formal  agreement  is  entenul  into, 
or  whether  they  meant  to  agree  by  parol  ;  but  agreeing  upon  all  the  terms  first, 
they  meant  afterwards  to  reduce  it  into  writing-  as  a  memorial.  *  *  *  If  t^vo 
paities  have  agreed  or  talked  together  upon  an  agreement,  and  it  is  understood 
between  them  that  that  agreement  is  to  be  reduced  into  writing,  nothing  binds 
them  but  that  writing.  If  parties  agree  finally  to  be  bound  by  any  terms,  and 
then,  for  the  sake  of  possessing  a  memorial,  having  agreed  to  be  bound  by  the 
original  terms,  they  get  a  document  di-awn  up,  thert^  is  no  doid)t  that  they  aie 
bound  by  the  original  terms,  j)rovided  they  a)-e  such  terms  as  can  be  binding- 
without  writing,  and  are  not  void  under  the  .statute  of  frauds.  The  formal  docu- 
ment is  only  ancillary.  If  the  original  understanding  is  that  the;  tei-ms  ai-e  to  be 
reduced  into  wi-iting,  and  that  the  i)arties  are  not  to  be  bound  initil  the  terms  are 
reduced  into  writing,  then  each  party  has  a  right  to  withdraw  beft)re  the  agree- 
ment is  signed.  But  if  the  terms  are  agreed  upon  by  parol,  and  the  writing  is 
meant  to  record  the  transaction  and  to  preserve  a  memorial  of  it,  in  that  ca.'se  they 
are  bound  ;  and  if  it  becomes  essential  to  satisfy  the  statute  of  frauds,  you  may 
oblige  them  to  sigii  the  memorial,  pro\'ided  you  have  sufficient  to  bring  it  within 
the  statute  of  frauds.     Here  the  question  woultl  be  simjily  :  Did  the  parties  mean 

91 


88  :>i'Kciri('  j-khfoi^masce  of  contkacts. 

in  order  to  carry  out  the  intention  of  the  parties,  bift  still  there  is  noth- 
ing conditional  or  ambiguous  in  the  mutual  assent.  It  is,  therefore,  a 
settled  rule  that  if  an  agreement  lias  been  actually  concluded,  it  is 
nevertheless  binding,  although  the  parties  have  declared  that  it  is  to 

that  the  attorney  should  draw  up  the  agreement  because  they  had  tinally  a^'-i-ced 
upon  the  terms,  and  merely  wanted  a  formal  document,  or  were  the  parties  negoti- 
ating for  an  agreement  for  a  lease  to  be  drawn  up  by  an   attorney  1    Now  the 
impression,  in  my  mind,  is  that  this  is  a  negotiation  for  an  agreement  for  a  lease  ; 
that  the  parties  imderstood  that  they  were  to  reduce  it  into  writing,  and  that  it 
would  not  operate  at  all  till  it  was  reduced  into  writing.     The  terms  were  agreed 
upon,  to  a  certain  extent,  and  they  were  sent  to  be  drawn  up  by  an  attorney.    There 
was  a  great  deal  to  be  done  before  the  lease  was  to  be  granted,  because  the  terms 
of  the  lease  were  to  be  arranged.     Was  it  not  open  to  the  defendant  to  put  into 
the  lease  every  sort  of  stipulation  ?     Then  how  can  it  be  binding  tinally  till  the 
agreement  was  drawn  up  specifying  the  terms  which  the  lease  was  to  contain,  and 
introducing  everything  which  the  parties  would  wish  to  introduce  ?    *    *     *     I 
come  to  the  conclusion  that  there  was  nothing  whatever  but  an  agreement  for  a 
lease,  in  which  lease  alterations  might  be  introduced,  and  which  it  was  evidently 
the  intention  of  the  defendant  should  be  introduced,  to  w'hich  it  is  by  no  means 
certain  the  plaintiff  would  have  agreed  ;  therefore,  the  agi-eement  is  incomplete." 
Lord  St.  Leonards  said,  on  this  same  subject  (p.  288)  :  "  If  the  terms  of  an  agree- 
inent  are  sent  to  a  solicitor  to   prepai-e    an    agreement,  that  is  binding.     The 
solicitor  has  not  the  slightest  power  to  alter  any  one  of  those  terms  which  are  thus 
sent  to  him  as  insti-uctious  to  jii-epare  a  formal  document.     He  is  bound  mechani- 
cally to  pei'form  the  duty  of  prepai'ing  a  lease  accoi-ding  to  those  terms.     *     '■'     * 
"Where  an  agreement  is  established  by  a  plaintifi',  any  formal  matters  incidental 
to  the  agreement  may  be  supplied  just  in  the  same  way  as  in  an  original  agree- 
ment.     Your  lordships  will  tind  that  laid  down,   among  other  authorities,   in 
Stratford  v.  Bosworth,  2  V.  &  B.  345."     See,  also,  perLcL  Ch.  Ckanworth,  i)p.  264, 
265.     The  offer  ami  the  acceptance  must  leave  nothing  to  be  arranged  m  future  in 
order  to  make  a  complete  contract.     In  Potts  v.  Whitehead,  5  C.  E.  Green  (20  N. 
J.  Eq.)  55.     A  wi"itten  offer  to  convey  land  within  a  fixed  time,  at  a  price  named, 
of  which  a  part  was  to  be  paid  on  the  execution  of  the  deed,  and  the  residue  was 
to  be  secured  by  bond  and  mortgage  on  the  land  at  6  per  cent,  was  acc.epted. 
Held,  that  as  no  time  for  the  payment  of  this  balance  was  stated,  an  essential  part 
of  the  contract  was  thus  left   undetermined  to  be  settled  by  future  negotiation, 
and,  therefore,  no  contract  was  concluded  which  could  be  enforced  l)y  the  one 
accepting.     In  Matteson  v.  Scofield,  27  Wise.  671,  the  vendor  offered  by  letter  to 
sell  certain  land  for  $3,200,  $1,000  down  and  $500  annually,  with   interest,  this 
balance  "to  be  secured  by  mortgage."    The  vendee's  unconditional  acceptance  of 
this  by  letter  was  held  to  make  a  concluded  contract,  as  the  terms  of  the  offer 
fairly  implied  that  the  land  was  to  be  conveyed  to  the  vendee  on  his  jiaymeiit  of 
the  $1,000,  and  the  mortgage  for  the  balance  was  to  be  given  upon  the  land  so 
conveyed.     See,  also,  Goodale  v.   Hill,  42  Conn.   311  ;  Lanz  t\  McLaughlin,   14 
Minn.  72  ;  [Pacific  Rolling  Mill  Co.  v.  Paverside  &  0.  Ry.  Co.  90  Cal.  627;  Andrew 
V.  Babcock  (Conn.),  26  Atl.  Rep.  715  (May  4,  1895) ;  May  v.  Thompson,  20  Ch.  D. 
705  ;  Brown  v.  Brown,  33  N.  J.  Eq.  650  ;  Howland  v.  Bradley,  38  N.  J.  Eq.  288  ; 
Magee  v.  McManus,  70  Cal.  553  (amount  of  note  and  mortgage   left  to  bo  the 
F.ubjoct  of  future   arrangement) ;   Los   Angeles   Assn.    v.    Phillips,    56   Cal.    539 
(same);  Williams  •?'.  Brisco,  22  Ch.  D.  441.     Where  the  contract  is  contained  in 
letters,  if  once  a  definite  offer  has  been  made,  and  it  has  been  accepted  without 
quahfication,  further  negotiations  between  the  parties  cannot,  without  the  consent 
of  fjoth,  get  rid  of  the  contract  already  arrived  at ;  Bellamy  v.  Debenhani,  45 
Ch.  D.  481]. 
92 


*  THE    CONTKACT  MIST   i;h:    (  (>.\CHI)t:i>.  89 

serve  only  as  iustiuctioiis  fur  a  more  loriuul  agreement,  or  although  it 
may  be  an  express  term  that  a  formal  agreement  sliall  be  prepared 
and  signed  by  the  parties.(])  This  rule  is  entirely  independent  of 
the  statute  of  frauds,  because  it  relates  directly  to  the  nature  of  the 
assent  which  is  the  substance  of  a  contract,  and  not  to  the  written 
foi-ni  in  which  that  assent  may  be  expressed.  In  ap[)lying  it  a 
diiiicult  ([uestion  of  fact  may  arise,  whether  the  parties  have  finally 
assented  to  terms  whicli  they  have  agreed  shall  be  end)odied  in  a 
formal  document,  or  wliether  they  have  simply  agreed  that  a  (h)cu- 
ment  shall  be  }»repared  to  the  terms  of  which  tlieir  assent  unist 
hereafter  be  given. 

(1)  Ridgway  v.  Wliarton,  (5  11.  L.  Cas.  238,  204,  26.') ;  Chinnoi-k  v.  Marchionoss 
of  Ely,  4  De  G.  J.  &  S.  ()3S,  645,  646,  i>ei'  Lord  Ch.  WESTniutY  ;  Fowle  v.  Frueiiiau. 
9  Ves.  S.")!  ;  Kennedy  v.  Lee,  3  Mer.  441 ;  Thomas  w  Derinir,  1  Keen,  729  ;  Tawney 
V.  Crowthei',  3  IJro.  C.  C.  161,  318.  See  observations  on  last  case  by  Lord  lliiUKS- 
DALB  in  Glinan  v.  Cooke,  1  Sch.  &  Lof.  22,  33.  Lord  Wkstbchy'.s  lang-uatre,  at  the 
place  cited,  is :  "I  entirely  accept  the  doctrine  that  if  there  had  bccni  a  linal 
agreement,  and  the  terms  of  it  are  evitlencedin  a  maimer  to  satisfy  the  statnte  of 
frauds,  the  agreement  shall  be  binding,  although  the  parties  may  have  declared 
that  the  writing  is  to  serve  only  as  instructions  for  a  formal  agreement ;  or, 
alihovigh  it  may  be  an  express  term  that  a  foi-mal  agreement  shall  be  i)rei)ared 
and  signed  by  the  X)arties.  As  soon  as  the  fact  is  established  of  the  linai  mutual 
assent  of  the  parties  to  certain  tiM-ms,  and  those  terms  are  evidenced  V)y  any  writing 
signed  by  the  pai'ty  to  be  charged,  or  his  agent  lawfully  authorized,  there  exist 
all  the  materials  which  this  court  reipiires  to  make  a  legally  binding  contract." 
Ld.  Clian.  Westiury  here  connects  the  rule  with  the  recpiirements  of  the  statute 
of  frauils,  which,  in  a  large  majority  of  instani'os,  will  in  factt,  be  apjilicable. 
Ld.  Chancelloi-  Craxswokth,  in  Ridgway  i\  Whai-ton,  6  II.  L.  (Jas.  238,  264,  205, 
.states  it  in  its  proper  generality:  "I  ipiite  agree  with  the  doctrine,  as  being  a 
good  doctrine,  both  in  law  and  at  ecpiity,  that  if  parties  have  entered  into  an 
agreement,  they  are  not  the  less  bound  by  that  agreement  because  they  say : 
*  We  sent  it  to  a  solicitor  to  have  it  reduced  into  form.'  But  when  the  jiarties 
negotiate  and  do  not  say  so,  the  mere  fact  that  they  do  send  it  to  a  solicitor  to 
have  the  matter  reduced  into  form,  affoi'ds  to  my  mind,  genei-ally,  cogent 
evidence  that  they  do  not  intend  to  bind  themselves  till  it  is  reducecl  into  form. 
That,  however,  is  a  question  of  fjict  which  must  depend  upon  the  cij-cumstances  of 
each  particular  case.  *  *  *  (p.  268).  I  again  prot(\st  against  its  being  sup- 
posed, because  persons  wish  to  have  a  formal  agi-eement  drawn  \i\},  that,  there- 
fore, they  cannot  be  bound  by  a  previous  agreement,  if  it  is  clear  that  such  an 
ag:eement  has  been  made  ;  but  the  circumstance  that  the  parties  do  intend  a 
subsequetit  agreement  to  be  inade  is  strong  eviilence  to  .show  that  tliey  did  not 
inend  the  in-cvious  negotiations  to  amount  to  an  agreement  "  In  the  leading 
case  of  Fowle  x\  Freeman,  9  Ves.  351,  the  parties  had  been  n<'goliating,  Fowle 
for  the  pui'chast!  and  Freeman  for  the;  sale  of  an  estate.  FinaUy  they  met,  and 
Freeman  signed  the  following  docmnent :  "I  agree  to  sell  to  Mr.  Fowle  my 
estate,  titles,  and  manor  at  Chute  Lodge,  together  with  the  woods,  trees  and  lix- 
tures,  except  Cadley  Cottage,  for  the  sum  of  27,000/.,  upon  the  following  condi- 
tions " — stating  several  conditions.  He  th(;n  add'-d  a  letter  to  his  solicitor,  desir- 
ing him  to  jirepare  a  ])roi)er  agreement  for  Mr.  Fowle  and  himself  to  sign,  and 
to  deliver  to  th(^  bearer  an  abstract  of  his  title.  Fowle  having  accepted  the  o'ler. 
Sir  William  (iuAXT  held  that  there  was  a  concluded  contract,  to  all  intents  and 
purposes.  They  might  well  wish  to  have  it  in  a  more  formal  slKipe,  but  the 
<lii"ection  to  the  solieitoi*  to  liand  over  tli<!  absti-act  of  title,  and  FreiMuan  sii;niing 
the  agreement,  made  it  perfectly  cleai-  that  tlie  parti(!s  meant  that  agreement  to 
bin<l  them,  although  the  foi-mal  agreement  was  to  be  signed  afterwai-ils  See, 
also,  Cowlev  r.  Watts,  17  .lui-.  172;  Gibbins  v.  North  Eastern,  etc.,  AFvhmi,  11 
Beav.  1 ;  Skinner  i\  McDeuall,  2  De  G.  &  Sm.  265;  [Bonnewi-11  v.  .Tenkins,  8  Ch. 
D.  74;  Gray  f.  Smith,  43  Ch.  D.  208;  Wharton  v.  Stoutenhurgh,  35  N.  .1.  Eq. 
266,  273;  Cochrane  v.  Justice  Mining  Co.  (Colo.),  26  P.  780  (May  7,  is;)l);  Kama 
V.  Olney,   80  Cal.   90].     In  Gibl)ins  v.  North  Eastern,  etc.,  Asylum,  one?  party 

93 


90  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

Acceptance  must  be  unconditional,  and  not  vary  from  the  offer. 

Sec.  64.  Second.  As  the  assent  of  the  parties  should  be  yiveii  to 
exactly  the  same  matters,  the  acceptance  must  not  vary  from  the 
terms  of  the  offer,  either  by  way  of  omission,  addition,  or  alteration  ; 
if  it  does  vary  in  either  of  these  modes,  no  contract  is  concluded 
thereby,  the  transaction  remains  in  the  state  of  negotiation,  and 
neither  party  is  bound.(l)  This  rule  itself  is  clear;  the  practical 
question  is  :  What  amounts  to  a  fatal  variation  ?  The  most  common 
form  consists  in  the  addition  of  a  new  term.  "Whenever  the  accept- 
ance contains  a  substantive  term  not  found  in  the  offer,  and  not  being 
in  response  to  anything  intentionally  left  by  the  offer  to  be  decided 
in  that  manner,  there  is  plainly  no  consensus  of  minds,  and  no  con- 
wrote:  "I  offer  you  3,000Z.  for  the  estate."  The  other  replied:  "I  accept  your 
offer,  and  if  you  ujiprove  of  the  inclosed,  sign  the  same,  and  I  will,  on  receijjt  of 
the  deposit,  signi  you  a  copy."  The  inclosure  was  not  jirodueed,  but  the  coui't 
held  the  contract  concluded  l)y  the  letters,  and  the  inclosure  as  mei-ely  the  means 
of  carrying  it  into  effect.  In  Skiinier  v.  McDouall,  a  party  having-  made  an  offei- 
to  take  a  lease  of  a  house,  the  agent  of  the  owner  wrote  thus  :  "These  terms  1 
have  submitted  to  Mrs.  S.  [the  owner],  and  I  am  authorized  to  say  that  they  are. 
accepted,  and  that  her  solicitor  will  draw  up  a  proper  agreement  for  signatures, 
which  I  will  forward  you."  The  offer  and  this  letter  were  held  to  constitute  a 
binding  contract. 

(1)  Honeymann  v.  Marryatt,  G  H.  L  Cas.  112 ;  21  Beav.  14 ;  Kennedy  v.  Lee,  ;> 
Mer.  441 ;  Routledge  v.  Grant,  4  Bing.  653  ;  Meynell  v.  Surtees,  3  8m.  &  Giff".  101  ; 
1  Jur.  (N.  S.)  737 ;  Hall  v.  Hall,  12  Beav.  414 ;  Lucas  v.  James,  7  Ha.  410;  Duke 
V.  Andrews,  2  Exch.  2D0;  Hazard  v.  New  Eng.  Marine  Ins.  Co.  1  Summ.  218; 
Carr  v.  Duval,  14  Pet.  77  ;  Vassar  v.  Camp,  11  N.  Y.  441;  [Meux  v.  llogan,  91  Cal. 
442  ;  Sault  Ste.  Marie  L.  &  I.  Co.  v.  Simons,  41  Fed.  Rep.  835  ;  Putnam  v.  Grace, 
161  Ma.ss.  237 ;  Corcoran  v.  White,  117  111.  118;  Langellier  v.  Schaefer  (Minn.).  31 
JSr.  W.  690 ;  Derrick  v.  Monotte,  73  Ala.  75  ;  Kennedy  v.  Gramling,  33  S.  C.  367  ; 
Tayloi-u  Von  Schroeder  (Mo.),  16  S.  W.  675;  Ford  v.  Gebhardt  (Mo.),  21  S.  W. 
818;  Veith  v.  McMurtry,  26  Nebr.  341 ;  Gi-eenawalt  v.  Este,  40  Kan.  418  (accept- 
ance names  a  place  for  pajonent  in  another  state  from  that  in  which  offerer  does 
business) ;  Batie  v.  Allison,  77  Iowa,  313 ;  Robinson  v.  Wallei-,  81  Ga.  704 ; 
(acceptance  names  a  place  for  payment  and  delivery  of  the  deeds  not  intended 
by  the  vendor) ;  Weaver  v.  Burr,  31  W.  Ya.  736  ;  Bentz  v.  Eubanks,  41  Kans.  28. 
Where  the  offer  was  to  sell  for  ";;-S00  cash,"  which  was  accepted  ;  but  the  letter 
'Of  accej^lance  contained  requirements  as  to  the  place  for  delivery  of  the  deeds 
and  payment  of  the  purchase  money,  it  was  held  that  the  acceptance  introduced 
mew  terms  and  the  contract  was  not  completed.  Langellier  v.  Schaeff'er,  36  Minn. 
361.  So  where  the  acceptance  substituted  the  name  of  the  wife  of  the  party, 
^accepting  in  place  of  his  own.  Derrick  v.  Monette,  70  Ala.  75.  A  ^\Titten  o.Ter, 
followed  by  a  wi'itten  acceptance  with  new  terms,  followed  by  a  parol  offer  and 
-accejitance,  with  no  evidence  that  the  jxirol  contract  formed  part  of  the  written, 
Iieid  not  to  constitute  a  contract  capable  of  being  enforced  in  absence  of  part 
performance.  Moody  v.  McFadden,  60  la.  601.  Where  the  acceptance  was  as  of 
•a  cash  offer,  which  the  proposer  did  not  intend  to  make,  held  no  completed  con- 
tract. Omnium  Securities  Co.  v.  Richardson,  7  Out.  R.  182].  Several  of  these 
cases  were  at  law,  but  they  serve  to  illustrate  the  doctrine,  which  applies  as  well 
in  equity  as  at  law.  In  RouLledge  v.  Grant,  supm,  the  offer  was  to  purchase  a 
iiouse  on  certain  terms,  including  one  that  possession  should  be  given  on  or  l)efore 
the  twenty-fifdi  of  July,  then  next ;  the  acceptance,  by  the  vendor,  varied  from 
the  offer  solely  in  undertaking  to  give  possession  on  the  first  of  August,  and  it 
was  held  that  no  contract  was  concluded  thereby.  In  Meynell  v.  Surtees,  where 
a  land  owner  offered  a  right  of  Avay  to  a  railway  company  for  mineral  traffic  only, 
and  the  company  accepted  it  for  the  purpose  of  building  a  line  to  be  used  foi- 
general  public  traflfic,  it  was  held  that  no  contract  had  been  entered  into,  on 
account  of  this  variation  from  the  proposal.  See  Matteson  v.  Scofield,  27  Wise. 
671,  where  it  was  held  that  the  acceptance  contained  no  substantial  variation. 
94 


THF    <<)XTh'ACr  MUST   UK    CONCLUnKD.  91 

eluded  contract. (1)  Every  provision  in  tlio  acceptance,  hov^rever,  wliicli 
is  not  embraced  in  the  offer,  docs  not  necessarily  constitute  a  substan- 
tive new  term,  and  so  prevent  the  retiuisite  mutual  ass(Mit.  The 
l)roposal  itself  may  expressly  provide  lor  such  an  additional  feature 
to  come  from  the  other  party,  or  even  from  a  third  person,  and  to  form 
a  portion  of  the  completed  contract.  If,  for  example,  the  off"er  should 
leave  some  term  to  be  determined  in  sm'h  a  manner,  an  acceptance 
which  made  the  decision  would  create  a  contract,  since  the  proposer 
would,  expressly  or  impliedly,  agree  to  be  bound  thereby,  and  the 
assent  would  thus  be  nuitual.(2)  The  parties  nuiy,  also,  by  the  off"er 
and  the  acceptance,  stipulate  that  the  i)rice  shall  be  fixed  by  valuers, 
or  that  a  provision  of  the  contract  shall  be  finally  settled  by  third  per- 
sons, or  in  any  other  method,  as  agreed. (3)  The  introduction,  in  the 
acceptance  of  a  new  term  which  is  entirely  nugatory,  will  not  of  itself 
defeat  the  contract  ;(4)  nor  of  a  clause  providing  for  the  subsequent 

(1)  Honeyman  v.  Mai-ryatt,  6  H.  L.  Cas.  112  ;  21  Beav.  14.  M.  advertised  an 
•estate  for  sale.  H.  proposed  to  buy,  and  offered  a  certain  price.  M.'s  agent, 
thereupon,  wrote  to  H.  the  followinj^  letter :  "  Mr.  M.  has  authorized  us  to  accept 
the  offer,  subject  to  the  terms  of  a  contract  being- arranged  between  his  soHcitor 
and  yourself.  Mr.  M.  recjuires  a  deposit  of  from  1,200L  to  1,500/.,  and  the  pur- 
chase to  be  completed  at  Midsummer  Day  next."  No  reply  being  made  to  this 
letter,  it  was  held  there  was  no  completed  contract  on  which  to  sustain  a  suit  for  a 
specific  performance.  In  Chinnock  v.  Marchioness  of  Ely,  the  facts  of  which  are 
stated,  supra  (i}  G3  n.),  the  defendant's  letter  of  November  nineteenth,  if  an  accept- 
ance of  the  plaintiff's  prior  offer  of  May  eleventh,  contained  an  additional  term,  that 
the  contract  to  be  jirepared  by  the  defendant's  solicitor  must  be  assented  to  by  the 
plaintiff.  In  Holland  v.  Ayre,  2  S.  &  S.  194,  defendant  proposed  certain  terms  for  a 
lease,  which  plaintifi"  accepted,  but  offered  an  under  lease,  and  it  wjvs  held  that  no 
contract  resulted.  In  Lucas  v.  James,  7  Ha.  410,  a  series  of  alternate  additions  on 
each  side  ended  without  any  completed  contract.  Plaintiff  had  proposed  an 
agreement,  which  provided,  among  other  things,  that  a  lease  should  contain  all 
the  covenants  in  the  superior  lease  ;  defendant  accepted  this  agreement  with  the 
reservation  that  the  superior  lease  should  not  contain  any  unusual  clause  ;  a  draft 
of  the  proposed  lease  being  then  submitted  to  defendant,  he  returned  it,  with  some 
alterations,  to  plaintiff's  solicitoi-s,  who  consented  to  all  of  them,  except  one,  which 
related  to  an  assignment  without  jiermission  of  the  lessor.  It  was  held  that  there 
was  no  contract,  and  the  intended  lessee  wiis  entitled  to  abandon  the  negotiation. 
In  Duke  v.  Andrews,  2  Exch.  290,  wh(M-e  an  offer  was  made  to  take  certain  rail- 
way shares,  and  a  letter  accepting  .such  offer  was  headed,  "not  transferable," 
these  words  constituted  a  new  term  in  the  acceptance,  so  that  the  parties  were  not 
bound  by  a  completed  agi-eement. 

(2)  Boys  V.  Ayerst,  6  Mad.  316.  An  offer  left  a  day  to  be  named  by  the  other 
party,  and  his  acceptance  designated  the  day. 

(3)  See  Walker  v.  Eastern  Counties  Ry.  Co.,  6  Ha.  594. 

<4)  Lucas  V.  James,  7  Ha.  410,  424.  95 


92  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

execution  of  a  mere  formal  instrument,  or  otherwise  relating  to  the 
mode  of  carrying  the  agreement  into  operation ;(])  nor  of  expressions 
which  merely  state  a  hope,  expectation,  desire,  or  other  matter  which 
is  plainly  not  intended  to  be  binding  on  either  party. (2) 

The  acceptance  must  be  made  -without  unreasonable  delay. 

Sec.  6'.  Third.  If  the  oifer  itself  states  the  time  during  which  it  will 
remain  open,  and  is  not  previously  withdrawn,  the  party  to  whom  it  is 
addressed  has  the  entire  period  W'ithin  which  to  make  and  communi- 
cate his  acceptance.  If  the  offer  is  wholly  silent  in  respect  to  its 
duration,  it  continues,  unless  withdrawn,  for  a  reasonable  time,  and 
must  be  accepted  within  the  limits  of  that  reasonable  time.  If  the 
person  to  whom  it  is  made  accepts  after  an  unreasonable  delay — that 
is,  after  the  reasonable  time  has  elapsed — no  contract  is  concluded 
thereby,  even  though  the  offer  has  not  been  expressly  withdrawn,  for 
it  has  been  terminated  by  efflux  of  time,  and  there  is  nothing  upon 
which  the  acceptance  can  operate. (3)     What  is  a  reasonable  time,  or 

(1)  Gibbons  v.  North  Eastern,  etc.,  Asylnm,  11  Beav.  1  ;  Skinner  v.  McDouall, 
2  De  G.  &  Sm.  265  ;  and  see  cases  cited,  aide,  §  63.  [See  also  Marr  v.  Shaw,  51 
Fed.  Rep.  860  ;  Lang-ellier  v.  Schaeffer,  36  Minn.  361.] 

(2)  Clive  V.  Beaumont,  1  DeG.  &  Sm.  397,  where  the  words,  "  we  hope  to  give 
you  possession  at  half-quarter  day,"  were  held,  in  accordance  with  the  rule  stated 
in  the  text,  not  to  aifect  the  contract.  Johnson  v.  King,  2  Bing.  270  ;  Fitzhugh  ii. 
Jones,  6  Munf.  83,  is  an  instructive  case,  as  it  will  always  be  a  somewhat  nice 
question  to  discriminate  between  matter  which  is  thus  expressive  of  a  hope  or 
intent,  and  matter  which  is  to  be  a  term  of  the  contract.  A.  wrote  to  B.,  the 
owner  of  lands,  asking  the  latter's  terms  per  acre,  and  stating  the  order  of  pay- 
ments he  was  willing  to  make.  B.  answered,  stating  the  price,  and  accepting  the 
proposed  mode  of  payment,  but  required  A.  to  procure  the  boundary  lines  to  be 
ascertained.  A.  replied,  accepting  the  terms,  and  consenting  to  establish  the 
boundaries  ;  but  his  letter  added  a  wish  thatB.'s  agent  would  locate  one  of  the 
lines  which  separated  the  land  from  certain  adjacent  pi-oprietors,  because  he,  A., 
was  restrained  from  doing  it  himself  by  feelings  of  delicacy,  on  account  of  his  per- 
sonal relations  with  those  proprietors.  This  latter  expression  of  a  wish  did  not 
amount  to  a  new  tei-m,  and  the  contract  was  held  completed.  In  Matteson  v.  Sco- 
field,  27  Wise.  671,  the  vendor  wrote  to  the  vendee  a  letter,  offering  to  sell  land  on 
certain  terms,  as  to  price  and  time,  and  mode  of  payment.  The  vendee  answered 
by  letter,  accepting  the  offer,  and  proposing  therein,  but  not  as  a  condition  of  the 
acceptance,  to  transact  the  business  through  a  bank  at  H.,  near  the  writer's  place 
of  residence  ;  and  the  vendor  replied  to  this,  waiving  his  right  to  be  paid  at  his 
own  residence,  and  offering  to  come  to  H.  and  transact  the  business  in  person. 
Held,  that  a  contract  was  concluded  by  the  first  letter  of  the  vendor  and  the 
answer  by  the  vendee,  and  that  such  answer  contained  no  variation  from  the 
terms  of  the  offer,  but  was  an  imconriitional  acceptance  ;  the  suggestions  on  both 
sides,  concerning  the  place  of  ti-ansacting  the  V)nsiness,  f'oT-int»(l  no  j)art  of  the 
contract. 

(3)  Meynell  ?).  Surtees,  1  Ju7\  (N.  S.)  737,  per  Lord  Cranworth  :  "When  I 
offer  anything  to  a  person,  what  I  mean  is,  I  will  do  that  if  you  choose  to  a.ssent 

96 


THE    COyTliACT  MUST  BE   CONCLUDED.  9:? 

unreasonable  delay,  must  be  determined  by  the  eircmuHtances  of  each 
case,  depending,  to  a  groat  extent,  upon  the  nature  of  the  subject- 
matter,  the  relations  of  the  })arties,  and  the  coursi;  and  usages  of  the 
trade  or  business.  An  otter  to  sell  an  estate  will  evidently  remain  open 
longer  than  an  off"er  to  sell  merchandise  in  the  market,  or  stocks  in 
the  exchange. (1)  , 

The  manner  and  form  of  the  acceptance. 

Sec.  Q)Q.  The  acceptance  may  be  in  writing,  by  i)arol,  or  by  arts. 
The  cases  in  which  the  contract  must  be  embodied  in  a  written  mem- 
orandum, in  order  to  satisfy  the  Statute  of  Frauds,  will  be  considered 
in  subsequent  i)aragraphs.(2)  In  all  species  of  agreements  to  which 
that  statute  does  not  apply,  and  to  whose  validity,  therefor(%  a  writ- 
ten memorandum  is  not  essential,  both  the  off"er  and  the  acceptance, 
or  either  of  tlicni,  may,  of  course,  be  verbal. (3)  A  [)ar()l  acceptance  is, 
also,  sometimes  sufficient  in  cases  falling  within  the  Statute  of  Frauds. 
That  statute  requires  a  note  or  memorandum  of  the  agreement  signed 
l)y  the  party  to  be  charged.  When,  therefore,  the  offer  comes  from  the 

to  it ;  meaning,  although  it  is  not  so  expressed,  it  you  thoos(;  to  assent  to  it  in  a 
reasonable  time."  Williams  v.  Williams,  17  Beav.  213,  In  1827,  A.  wrote  to  B. 
that  he  had  credited  B.'s  account  with  200Z.,  in  consideration  of  an  agi'eement  by 
B.  to  convey  certain  houses.  The  abstract  of  title  was  (hilivered,  but  B.  did  not 
accept  in  writing  Five  years  after,  B.  tiled  his  bill  against  A.  for  a  specitic  p(^r- 
formance.  A.  had  abandoned  the  matter  in  1S27,  but  B.  all  the  time  had  the  benefit 
of  the  credit.  The  bill  was  dismissed  on  the  ground  that  an  offer  should  be 
accepted  and  acted  on  within  a  reasonable  time.  Beckwith  v.  Cheever,  1  Fost.  41; 
Pei'u  V.  Turner,  1  Fairf.  18.5  ;  Wilson  v.  Clements,  3  Mass.  1;  [Wenham  v.  Switzer 
(C.  C.  A.),  .59  Fed.  Rep.  942].  The  jiroposer,  upon  the  receijit  of  an  acceptance 
after  such  unreasonable  delay,  may,  of  course,  treat  it  as  valid,  and  ix.s  creating 
a  concluded  contract ;  but  this  would  in  reality  be  by  renewing  his  offer  and  thus 
commencing  the  treaty  de  novo. 

(1)  In  Mactier  v.  Frith,  6  Wend.  103,  it  was  said  that  a  willingness  by  the  party 
offering  to  enter  into  the  agi-eement,  is  presumed  to  continue  for  the  time  limited  ; 
and  if  that  time  be  not  limited  by  the  offer,  them  until  it  is  expressly  revoked  or 
countervailed  by  a  contrary  presumption.  This  latter  clause  is  (entirely  mislead- 
ing as  the  statement  of  a  general  rule,  and  even  the  first  is  liable  to  criticism. 

(2)  See  the  discussion  of  the  Statute  of  Frauds,  and  the  memorandum  required 
by  it,  post,  §  73,  et  seq.  [For  instance  of  acceptance  by  acts,  see  Boyd  v.  Brinckin, 
5.5  Cal.  427.] 

(3)  The  parties  may,  if  they  prefer,  ado]it  a  written  form  in  such  ca.ses  ;  and  if 
they  do  so  the  contract,  when  reduced  to  writing,  cannet  be  varieil  nor  in  geue- 
i-al  even  be  proved  V)y  parol  evi<lence  ;  but  the  rule,  which  is  one  jiuivly  of  exjie- 
diency,  does  not  apply  to  the  process  of  entering  into  the  contract,  to  the  coming 
together  and  final  consensus  of  the  two  minds  upon  the  same  jioiiits.  Thus,  in 
contracts  for  personal  services,  for  manufacturing,  etc.,  if  effected  by  no  provi- 
sion of  the  statute,  the  offer  might  be  directly  made  in  a  verbal  negotiation,  and 
the  acceptance  be  stated  and  communicated  in  a  letter ;  or  the  offer  sent  by  letter 
and  the  acceptance  given  in  a  subsequent  conversation  ;  or  both  might  be  verbal 
and  the  conti-act  concluded  at  the  same  interview.  97 


94  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

party  to  be  charged,  is  in  writing  and  signed  by  him  or  by  his  duly 
authorized  agent,  and  contains  all  the  terms  of  the  proposed  agree- 
ment, so  that  the  acceptance  need  only  be  a  simple  assent  without 
anything  being  left  for  it  to  determine  or  add  by  way  of  a  further 
provision,  such  acceptance  may  be  by  parol,  and  constitute  a  com- 
pleted contract,  binding  upon  the  ^fi'oposer,  in  conformity  witli  the 
statute. (1)  The  rule  was  settled  under  the  chancery  practice  that  in 
cases  where  the  offer  comes  from  the  defendant,  the  filing  of  the  bill 
in  a  suit  to  enforce  a  specilic  performance  is  prima  facie  evidence  of 
an  acceptance,  subject,  however,  to  proof  by  the  defense  that  the  offer 
had  been  withdrawn,  or  terminated  by  refusal,  or  by  delay,  or  by  any 
other  means  before  the  commencement  of  the  suit. (2)  Finally,  the 
acceptance  of  an  offer  may  be  indicated  by  the  acts  of  the  party 
to  wliom  it  is  made.  In  such  a  case,  however,  the  acts  should  be 
regarded  as  evidence  of  the  mental  assent  essential  to  the  conclusion 
of  a  contract,  rather  than  as  constituting  the  assent  itself.(3)  In  what- 
ever mode  the  assent  is  signified,  vvhether  by  writing,  by  words,  or 
by  conduct,  it  must  be  actually  expressed  in  some  overt  manner,  by 
some  overt  acts ;  a  mere  mental  intention  to  accept  an  offer,  however 
carefully  formed,  will  not  create  a  contract.  (4) 

(1)  See  infra,  §  76,  ami  cases  there  cited.  It  is,  of  course,  essential  that  the 
written  offer,  signed  by  the  proposer,  should  contain  all  the  essential  terms  of  the 
agreement  in  order  that  it  should  be  a  sufficient  memorandum  to  satisfy  the  stat- 
ute, and  that,  therefore,  it  should  leave  nothing  to  be  decided  or  suj^plied  by  the 
acceptance  ;  and  the  parol  acceptance  should  be  merely  an  assent  to  these  terms. 
See  "Warner  v.  "Willington,  3  Drew.  523,  per  Kindersley,  V.  C.  ;  Smith  v.  Neale, 
2  C,  B.  (N.  S.)  67,  88  ;  Coleman  v.  Upcot,  5  Vin.  Abr.  527,  pi.  17 ;  Palmer  v. 
Scott,  1  R.  &  My.  391.  In  Minnesota,  an  oral  accejitance  of  a  written  otter  to  sell 
land  is  insufficient  under  the  statute.     Lanz  v.  McLaughlin,  14  Minn.  72. 

(2)  Boys  V.  Ayerst,  6  Mad.  316.  Whether  the  reformed  system  of  procedure, 
which  now  prevails  in  so  many  of  the  states,  as  well  as  in  England,  has  modified 
this  rule,  is  a  question  which  does  not  ajipear  to  have  arisen.  As  the  rule  seems 
to  have  been  based,  not  upon  the  form  of  the  suit,  but  upon  the  mere  fact  of  the 
plaintiff's  bringing  a  suit  to  enfoi'ce  the  contract,  and  thus  showing  his  acce^it- 
ance  of  the  defendant's  offer  by  his  conduct  in  the  most  complete  manner,  there 
is  probably  no  reason  why  the  rule  itself  should  be  changed. 

(3)  Parker  v.  Sei-jeant,  Finch,  146 ;  Hodgson  v.  Hutchinson,  5  Vin.  Abr.  522, 
pi.  34.  See,  also,  cases  cited  post,  §  69.  The  principle  hei-e  is  identical  with  that 
which  permits  a  marriage  to  be  inferred  from  the  conduct  of  the  parties.  A  jury 
is  always  told  that  the  conduct  of  the  parties  does  not  make  them  husband  and 
wife,  but  that  from  their  conduct  it  may  infer  that,  at  some  prior  time,  they  mutu- 
ally consented  to  be  husband  and  wife. 

(4)  Frith  v.  Lawrence,  1  Paige,  434.  An  intention  by  the  person  to  whom  an 
offer  was  directed  to  insert  an  acceptance  thereof  in  a  letter,  but  which  he  acci- 
dentally omitted  to  do,  was  held  to  h.ive  been  nugatory. 

98 


THE    CONTRACT  MVST  HE   CONCLVDEn.  95 

The  time  -when  the  contract  becomes  concluded. 

Sec.  G7.  Any  practical  dilliculty  iii  respect,  lo  tiiiu;  can  only  urisc 
when  a  contract  results  from  antecedent  treaty  or  neyfotiation,  aii<l 
the  question  then  is:  When  does  the  character  (•{"  the  relation  chanije 
from  that  of  mere  negotiation  into  that  of  obli<4"ation  ?  In  other  words  : 
When  does  the  concluded  contract  be^in  i*  The  acceptance  of  a;i  oiler 
creates  a  contract  only  from  the  time  of  the  acceptance,  and  does  not 
relate  back  to  the  time  when  the  offer  was  made.(l)  'i'his  principle  is 
important  in  its  application  to  acts  and  events  intervening  between  tlie 
date  of  the  offer  and  that  of  the  acceptance ;  but  it  does  not  answer 
the  question :  When  does  the  acceptance  take  effect  ?  As  soon  as  the 
Acceptance  is  expressed  by  positive  overt  acts,  and  the  assent  of  the 
two  minds  upon  the  same  points  is  thus  reached,  the  contract  is  con- 
cluded and  obligatory,  although  the  fact  of  such  overt  acts  and  of  the 
assent  which  they  represent  is  not,  at  the  time,  known  to  both  of  the 
parties. (2)  This  doctrine  is  most  frequently  applied  in  agreements 
negotiated  by  correspondence  through  the  mail.  The  rule  is  well 
settled  in  England,  and  in  most  of  the  states  in  this  country,  that,  in 
such  cases,  the  contract  is  finally  concluded  at. the  time  when  a  letter, 
containing  the  acceptance,  properly  addressed,  is  deposited  in  the 
post-office  by  the  person  to  whom  the  offer  was  made.  As  the  mail 
service  is  wdiolly  under  the  control  of  the  government,  the  party 
accepting  has  done  all  within  his  power  to  be  done  according  to  the 
ordinary  course  of  business,  and  ought  not  to  be  prejudiced  by  any 
delay  or  failure  of  the  post.  The  contract,  therefore,  is  completed  by 
and  from  the  act  of  mailing  the  letter,  even  though  it  should  never 
reach  the  person  who  made  the  offer.  The  posting,  and  not  the 
receipt,  of  the  letter  fixes  the  inception  of  the  agreement.(3)     If  the 

(1)  Dickenson  v.  Dodds,  L.  R.  2  Ch.  D.  4G3. 

(2)  Mactier  v.  Frith,  6  Wend.  103. 

(3)  Adams  v.  Lindsell,  1  B.  &  A.  681  ;  Dunlop  -«.  Higg'ins,  1  H.  L.  Ca.s.  3S1  ; 
Duncan  ^^.  Tophara,  8  C.  B.  225  ;  Stocken  v.  Collin,  7  M.  &  W.  515  ;  Potter  v. 
Sanders,  6  Ha.  1  ;  Mactier  v.  Frith,  6  Wend.  103  ;  Vassar  v.  Camp,  11  N.  Y. 
441  ;  Brisban  v.  Boy<l,  4  Paig-e,  17 ;  Clark  v.  Dales,  20  Barb.  42 ;  Avoi-ill  v. 
Hedge,  12  Conn.  424;  Beckwith  v.  Cheever,  1  Fcst.  41  (N.  H.);  Hamilton/'. 
Lycoming  Ins.  Co.,  5  Barr.  339  (Pa.) ;  Levy  -».  Cohen,  4  Geo.  1 ;  Chiles  v.  Nelson, 
7  Dana,  281  (Ky.) ;  Palls  v.  Gaither,  9  Port.  G05  (Ala.) ;  [Haas  v.  Myers,  111  111. 
421 ;  Otis  V.  Payne,  2  Pickle  (Tenn.),  GG3 ;  cf.  Linn  v.  McLean,  SO  Ala.  3G0.  As 
to  acceptance  by  telegram,  see  Haas  v.  Myer.s,  111  III.  421].  In  Mass.  this  rule  is 
rejected.  McCuUough  v.  Eagle  Ins.  Co.,  1  Pick.  278 ;  Thayer  v.  Middlesex  Mat. 
Fire  Ins.  Co.,  10  Pick.  326.  It  follows,  as  a  necessai-y  result  from  this  rule, 
that  if  an  offer  is  .sent  by  mail,  whicli  is  duly  hu-eived,  and  before  it  is  received, 
a  withdrawal  is  dispatched  in  the  same  manner,  but  a  letter  accepting  the  otter  is 
■deposited  in  the  post-office  before  such  withdrawal  arrives  at  its  destination,  the 

99 


96  SPECIFIC   P  Eli  FORMA  NCb:    OF  CONTBACTS. 

negotiation  is  conducted  by  an  agent  for  tlie  proposer,  his  receipt  of 
the  acceptance,  or  the  properly  mailing  it  to  liim,  as  the  case  may 
be,  completes  the  contract,  although  he  may  fail  to  connnunicate  the 
fact  to  his  principal.(l)  If,  however,  the  receiver  of  an  offer  sends 
his  acceptance  by  a  private  messenger,  it  must  actually  reach  the 
other  party  before  any  contract  is  concluded.(2) 
Promise  to  do  something  on  demand. 

Sec.  68.  2.  Another  species  of  agreements,  resulting  directly  from 
negotiation,  embraces  those  cases  in  which  a  promise  has  been  given 
by  one  party  to  do  some  specified  act  on  demand,  and  the  demand  is 
made  by  the  other  party.  (3)  These  contracts,  however,  when  anal- 
yzed, appear  to  be  particular  instances  of  the  general  class  just  dis- 
cussed, which  are  formed  by  an  offer  and  an  acceptance.  The  promise 
to  do  the  act  on  demand  is  an  offer,  and  the  demand  is  an  accept- 
ance. The  same  rules,  therefore,  in  regard  to  withdrawal,  delay, 
mode  and  time  of  acceptance,  apply  alike  to  both,  and  need  no  further 
illustration. 

Sec.  69.  3.  Another  group  includes  those  contracts  which  are  cre- 
ated by  representations  made  by  one  party,  and  acts  done  by  the 
other  party  upon  the  faith  of  such  representations.  A  representation 
deliberately  and  intentionally  made,  for  the  purpose  of  influencing 
the  conduct  of  another  party,  and  then  acted  upon  by  him,  is,  in  gen- 
eral, the  foundation  of  a  right, (4)  In  order  that  the  right  on  one 
side  and  the  duty  on  the  other  should  be  those  of  contract,  the  rej)- 
resentation  must  be,  in  some  sense,  promissory — that  is,  must  be  of 

contract  is  concluded,  althoug-h  the  withdrawal  reaches  the  party  to  whom  it  is 
sent  before  the  acceptance  can  be  conveyed  by  due  course  of  mail  to  the  person 
making  the  offer.  See  The  Palo  Alto,  Davies,  344,  which  decides  that  in  all 
engagements  formed  inte7^  absentes  by  letters  or  messengers,  an  offer  by  one  party 
is  made,  in  law,  at  the  time  when  it  is  received  by  the  other.  Before  it  is  received 
it  may  be  revoked.  The  revocation  is  also  made  when  it  is  received,  and  not 
before.  If  the  party  to  whom  the  offer  is  made  accepts  and  acts  on  the  offer,  the 
engagement  will  be  binding  on  both  j)arties,  though,  before  it  is  accej)ted,  another 
letter  or  messenger  may  have  been  dispatched  to  revoke  it. 

(1)  Wi-ight  V  Bigg,  15  Beav.  592. 

(2)  Qu.  Where  the  acceptance  is  sent  by  an  express  company  which  does  gen- 
eral public  business. 

(3)  Beatson  v.  Nicholson,  6  Jur.  620. 

(4)  Hammersley  v.  DeBiel,  12  CI.  &  Fin.  62,  n.  pei-  Lord  Cottenham  :  "A rep- 
resentation made  by  one  pai-ty  foi*  the  purpose  of  influencing  the  conduct  of  the 
other  party,  and  acted  u])on  by  him,  will,  in  general,  be  sufficient  to  entitle  him 
to  the  assistan(;e  of  this  court  for  the  purjiose  of  realizing  such  i-epresentation." 
The  case  of  i-epresentation,  followed  by  acts,  must  be  distinguished  from  that  of 
an  offer  accepted  by  acts  already  mentioned.     In  the  latter  case  there  is  an  inten' 

loa 


THE    CONTIiACr  .VUST  li R    CONCLUDED.  07 

something  in  the  future.  Representations  of  facts,  as  existing  or  p.-ist, 
may  bo  the  occasions  of  riglit,  but  by  the  operation  of  other  principles 
than  that  of  contract. (1)  Where  an  absohite  unconditional  r<'j)rc.^en- 
tation  of  soinothini^  to  b(^  (lone  in  tlio  future  i.s  made  l)y  one  por.son, 
in  order  to  accomplisli  a  particular  purp«)se,  and  the  person  to  whom 
it  is  made,  relying  ni>on  it,  does  the  acts  by  wliich  tlie  inton(hMi 
result  is  obtained,  a  contract  is  thereby  concluded  between  the  i)ar- 
ties.  The  representation  must  be  absolute  in  its  terms  and  positive 
in  its  nature ;  something  more  than  the  mere  expression  of  an  intention 
depending  upon  contingencies,  or  of  a  wish,  hope,  or  exi)ectation ; 
otherwise  the  obligation,  if  any,  which  arises  from  it  will  be  only 
moral  or  honorary.(2)     The  cases  involving  this  doctrine  are,  almost 

tion  by  the  offerer  to  create  a  contj-ac^t  ;  while  the  one  making'  a  representation 
may  not  intend  to  be  bound,  may  intend  to  mislead. 

(1)  These  principles  are  well  settled  and  familiar.  Whenever  a  i-opi-esentation 
is  made  concerning  something  as  then  existing,  or  as  having  existed,  by  a  i)e)'son 
who  knows  that  such  representation  is  untrue,  or  who  does  not  know,  or  has  no 
reasonalile  grounds  to  believe,  it  tp  be  true,  for  the  pui'i)ose  of  inducing  another 
person  to  act,  and  that  person,  i-elying  upon  the  statement,  does  some  act  which 
would  be  prejudicial  to  him  in  case  the  fact  were  otherwise  than  as  represented, 
the  party  who  made  the  rejiresentation  is  not  pei-mitted  afterwards  to  deny  the 
existence  of  the  fact.  The  law,  it  is  true,  can  only  impose  on  him  the  i-emcdial 
duty  of  paying  a  compensation  in  damages  for  the  injury  done  by  his  false  repi-e- 
sentation ;  but  ec^uity  can  compel  him  to  make  good  his  statement,  and  to 
conduct  himself,  in  all  respects,  as  though  the  fact  did  actually  exist. 
The  rights  which  thus  arise  from  repi-esentations  concerning  existing  or 
past  facts  and  events,  and  the  remedies,  legal  or  equitable,  for  their 
•enforcement  are  based  either  upon  the  principle  of  punishing  and  j)i'event- 
ing  fraud,  or  upon  that  of  equitable  estoppel,  and  are  not  referable  to  the  doc- 
trine of  contract.  One  or  two  examples  will  suffice,  for  the  subject  does  not 
properly  belong  to  the  present  treatise.  In  Bold  v.  Hutchinson,  20  Beav.  2r)0  ;  5 
DeG.  M.  &  G.  5.58,  during  the  negotiation  jn-eceding  a  marriage,  the  father  of  the 
lady  represented  to  her  intended  husband  that  she  was  entitled  to  lO.OOOL  on  the 
death  of  her  parents;  she  was  in  fact  entitled  to  only  half  of  this  sum,  and  the 
father's  estate  was  held  liable  for  the  deficiency  In  Neville  x\  Wilkinson,  1  Bi-o. 
C.  C.  543,  under  similar  circumstances  the  father,  during  the  arrangements  pre- 
liminary to  his  daughter's  marriage,  asserted  that  a  certain  claim  did  not  exist ; 
and  when  he  suVjsequently  endeavored  to  recover  the  demand  his  proceedings 
were  enjoined.  The  principle  is,  also,  either  referred  to  or  aj>plied  in  the  follow- 
ing cases,  both  in  law  and  at  erpiity :  Money  v.  Jordan,  2  DeG.  M.  &  G.  332,  i)cr 
Lord  Cranworth  ;  Ainslie  v.  Medlycott,  fl  Ves.  21,  per  Sir  William  (Jhaxt  ;  Jaine- 
.sori  ?).  Stein,  21  Beav.  5  ;  Gale  v.  Lindo,  1  Vern.  47.") ;  Scott  v.  Scott,  1  Cox,  3Gt) ; 
Montefiori  v.  Moutcfiori,  1  Wm.  Black.  363,  304  ;  Gregg  v.  Wells,  10  A.  &  E.  90 ; 
I'rei'man  r.  Cook,  2  Exch.  (5.')4  ;  Howard  v.  Hudson,  2  El.  &  Bl.  1;  [Boyd  v. 
IJrinckin,  .^)r)  Cal.  427,  420  ;  Southt'i-n  Pacific  R.  R.  Co.  v.  Teny,  70  Cal.  4S4J. 

(2)  Lord  Cka.vwortu  sai(b  in  Mandsell  v.  White,  4  H.  L.  Cas.  105G  :  *'Thei-e  i.s 
aio  middle  tei-m,  no  Urtium  quid,  between  a  representation  so  made  to  be  effective 
7  101 


98  SPECIFIC  PEKFOKMANCE    OF  CONTRACTS. 

without  excei)tion,  the  results  of  negotiations  respecting  marriages, 
and  the  representations  liave  been  concerning  the  property  to  be  set- 
tled upon  or  secured  to  one  or  the  other  of  the  intended  spouses.  As 
they  belong  to  a  social  condition  which  does  not  exist  in  this  country, 
it  is  sufficient  to  briefly  mention  them  in  the  foot  note.(l)  There  is  a 
series  of  decisions,  however,  in  which,  from  the  special  nature  of 
the  representations,  it  has  been  held  that  no  contrac  t  arose.  When, 
during  the  negotiation,  the  party  expressly  refuses  to  enter  into  a 
contract,  and  only  pledges   his  honor,  which   he   insists   should  be 

for  such  a  purpose  and  a  contract;  they  are  identical."  Randall -?>.  Morgan,  12 
Ves.  67,  was  an  example  of  a  representation  not  absolute.  A  father,  previous  to 
his  daughter's  marriage,  refused  to  make  a  settlement,  but  said  he  should  allow 
her  the  interest  of  2,O0OL,  and  if  she  married,  he  might  hind  himself  to  do  so,  and 
to  pay  her  the  principal  at  his  death.  This  was  held  not  to  be  a  contract.  That 
the  representation  must  be  clear  and  absolute,  see,  also,  Maunsell  v.  White,  1  J. 
&  Lat.  567  ;  Loxley  v.  Heath,  27  Beav.  523  ;  1  DeG.  F.  &  J.  489  ;  Kay  v.  Orook, 
3  Sm.  &  Gifi'.  407 ;  Jameson  v.  Stein,  21  Beav.  5 ;  where  the  representation  is 
contained  in  a  lost  document,  parol  evidence  of  its  contents  is  admissible.  26  L. 
T.  Rep.  (N.  S.)  381. 

(1)  Moore  V.  Hart,  1  Vern.  110,  201 ;  2  Cha.   Rep.  284  ;  Wankfo}-d  v.  Fotherly, 
2  \iiYw.  322  ;  2  Freem.  201 ;  Halfpenny  v.  Ballet,  2  Vern.  373  ;  Cookes  v.  Mascall, 

2  Vern.  34,  200  ;  Luders  v.  Anstey,  4  Ves.  501  ;  5  Ves.  213 ;  Saunders  v.  Cramer, 

3  Dr.  &  W.  87.  A  mari-iage  being  in  contemplation,  the  grandmother  of  the 
young  lady  wrote  and  signed  a  paper,  which  was  directed  to  be  shown,  and  was, 
in  fact,  shown,  to  the  intended  husband,  wherein  she  stated  her  purpose  to  leave 
a  certain  sum  to  the  grand-daughter  to  be  secured  by  a  bond.  The  marriage 
followed,  and  a  binding  contract  was  held  to  have  been  thereby  concluded. 
DeBiel  v.  Thompson,  3  Beav.  469  ;  12  CI.  &  Fin.  61,  n.  ;  Hammersly  v.  DeBiel,  12 
CI.  &  Fin.  45.  A  marriage  negotiation :  The  father ,  of  the  lady  wrote  that  he 
"intendf^d  to  leave  his  daughter  a  further  sum  of  10,000Z.  in  his  will  to  be  settled 
on  her  and  her  children,  the  disposition  of  which,  supposing  .she  had  no  childi-en, 
to  be  jirescribed  by  the  will  of  her  father  ;"  he  retained  the  power  to  modify  these 
arrangements.  The  proposal  was  accepted  by  the  intended  husband,  and  the 
marriage  followed  by  the  father's  consent.  It  was  held  that  the  power  of  modi- 
fication was  terminated  by  the  marriage  and  other  acts,  and  that  a  bindmg  con- 
tract was  completed.  See,  also,  Montgomery  u.  Reilly,  1  Bli.  (N.  S.)  364  ;  1  Dow, 
(N.  S.)  62.     Also,  Payne  v.  Mortimer,  1  Giff.  118 ;  4  DeG.  &  Jo.  447 ;  Alt  v.  Alt., 

4  Gitf.  84 ;  Loflt'os  v.  Maw,  3  Giff.  592.  The  contract  may  be  enforced  at  the  suit 
of  the  issue  of  the  mai-riage.  Walford  v.  Gray,  13  W.  R.  335,  761  ;  Skidmore  v. 
Bradford,  L.  R.  8  E(|.  134.  It  should  be  borne  in  mind  that  this  doctrine  is 
entirely  independent  of  the  questions  which  may  arise  under  the  statute  of  frauds. 
The  acts  of  jiarties  accompanying  or  following  a  marriage  may  be  essential  to 
constitute  the  part  performance  of  a  pj-ior  parol  agreement,  and  as  such  they  will 
be  considered  in  subsequent  ])aragraphs.  In  such  a  case,  however,  the  agree- 
ment is  establi-shed  outside  of  the  acts,  and  they  are  relied  upon  to  defeat  the 
statute.  By  virtue  of  the  doctrine  stated  in  the  text,  the  agreement  itself  is  con- 
cluded and  established  by  the  acts. 

102 


THK    (^OXTRACT   MUST  UK    COSCLVTtKD.  '.)•.) 

ucce])te(l  as  8iiliici(Mit.  and  il  scoiiis  when  tin;  representation  is  df  a 
inere  intentidii,  no  obliication  arises  wliicli  can  l>e  enforced  1iy  Ihe 
courts. (1) 

(1)  Thero  can  lie  no  doubt  when  the  jiarty,  in  so  many  words,  vcfusos  to  bind  him- 
self by  a  contract,  and  i'e(|iiiros  his  jilodg-o  of  honor  to  bo  taken  instead  of  a  loi^al 
obligation  ;  but,  in  resjicct  to  the  cH'oct  of  a  rt^pi-esentation  of  intention,  there  has 
been  a  direct  conflict  of  opinion  among'  t;ome  of  the  ablest  ecjuity  j  udges  in  England. 
The  followang  cases  are  illustrations  :  l.or<l  Walpole  w  Lord  Orfoi-d,  3  Ves.  402  ; 
Maunsell  v.  "NVliite,  1  J.  &  Lat.  539;  4  1 1.  L.  Oas.  1039  ;  [and  sec  Bank  v.  Jarvis,  28 
"W.  Va.  805].  A  young  gentleman  being  suitor  for  the  hand  of  a  young  lady  who  wa.s 
yet  a  minor,  her  guardians  objected  to  the  marriage,  unless  a  suitable  settlement 
was  made  by  him.  lie  applied  to  an  uncle  of  his,  who,  thereujion,  wrote  the  fol- 
Un\-ing  in  answer :  "  My  sentiments  resjiecting  you  continue  unalterable  ;  however, 
I  shall  never  settle  any  part  of  my  property  out  of  my  ])0wer  so  long  as  I  exist.  My 
wll  has  been  made  for  some  time,  and  I  am  confident  that  I  shall  never  alter  it  to 
your  disadvantage.  I  rei^eat,  that  all  my  Tipperary  estate  will  come  to  you  at  my 
death,  unless  some  unfoi'seen  occurrence  should  take  place."  He  added  that  as  he 
had  never  settled  property  on  any  one  of  his  nephews,  his  making  an  exception 
now  would  create  bad  feeling  among  them  ;  but  he  directed  that  this  letter  shoidd 
be  shown  to  the  young  lady's  guardians.  This  was  done,  and  tlie  marriage  fol- 
lowed. The  uncle  afterwards  changed  his  mind,  and  fiiiled  to  devise  the  estate 
to  his  nephew.  In  a  suit  to  compel  a  specific  jierformance,  it  was  held  by 
Lord  St.  Leonards  that  there  was  no  contract,  and  this  decision  was  affirmed  by 
the  House  of  Lords.  In  Money  v.  Jordan,  15  Beav.  372  ;  2  DeG.  M.  &  (t.  318  ; 
5  H.  L.  Cas.  185,  the  effect  of  a  statement  of  intention  was  fully  discussed,  with 
great  contrariety  of  opinion.  A  gentleman  being  about  to  marry,  his  creditor  to 
whom  he  was  indebted  on  a  bond,  stated  that  in  case  of  his  marriage  she  would 
never  trouble  him  about  the  bond  ;  that  she  had  given  it  up,  and  would  not  enfoi-ce 
its  payment ;  but  when  asked  to  actually  surrender  the  bond  she  refused,  insist- 
ing that  her  own  word  must  be  ti'usted,  and  that  he  might  rely  on  her  woi-d.  The 
gentleman  was,  thereupon,  married,  and  a  suit  having  been  subsequently  brought 
to  recover  the  amount  of  the  bond,  he  sought  to  restrain  it  1)y  injunction.  The 
relief  was  gi-anted  V)y  th<!  lower  courts,  but  refused  in  the  House  of  Lords  by  a 
majority.  In  the  latter  tribunal  Lord  St.  Leon.\rds  held  that  a  representation 
of  an  intention  might  be  binding,  while  Lord  Cranworth,  on  the  contrary,  held 
that  it  was  not.  In  Moorehouse  u.  Colvin,  15  Beav.  341,  a  father  had  made  a  will 
in  which  he  gave  12,500?.  to  his  daughter.  She  went  to  India  imder  the  cai-e  of  a 
friend,  to  whom  the  father  wrote  that  if  she  niai-i-ied  with  his  approval,  he  would 
pay  over  1o  her  hHs1)and  2,000?  ;  "  nor  will  this  b(>  all ;  she  is  and  shall  be  noticed 
in  my  will,  but  to  what  fui-ther  amount  I  (cannot  precisely  say,  owing  to  the 
present  reduced  and  reducing  state  of  intei'est,  which  puts  it  out  of  my  jiower  to 
determine,  at  ])resent,  what  I  may  have  to  disjiose  of."  This  letter  was  shown 
to  the  intended  husband  of  the  daughter,  and  the  marriage  took  place.  Tin' 
father  subsequently  made  anothei-  will,  omitting  the  12,.500?.  legacy  to  his  daugh- 
ter, and  giving  her  only  a  contingent  bequest  in  place  of  it.  It  was  held  that  no 
contract  was  created  by  his  letter  and  the  acts  done  in  reliance  upon  its  state- 
ments. See,  also,  Norton  ?).  Wood,  1  R.  &  Myl.  178 ;  Cross  v.  Sprigg,  6  Ha.  552  ; 
Viscountess  Montacute  v.  Maxwell,  1  P.  Wms.  618  ;  Price  v.  Asheton,  1  Y.  &  C. 
Ex.  441.  See,  also,  LofTus  v.  Maw,  3  Giff.  592.  604;  Pi-ole  i\  Soa.ly,  2  Giff.  1  ; 
McAskie  v.  McCfiy,  2  Irish  Etp  447.     Such   rein-esentation  cannot  be  enforced,  if 

103 


100  SPECIFIC  rERFORMANCE    OF  CONTRACTS. 

SECTION  IV. 

The  written  memorandum  required  by  the  statute  of  frauds. 

Section  70.  The  original  statute  of  frauds,  passed  in  the  reign  of 
Charles  II,  enacts  that:  "  No  action  shall  be  brought  *  *  *  to  charge 
any  i)orson  upon  any  agreement  made  upon  consideration  of  marriage, 
or  upon  any  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or 
any  interest  in  or  concerning  them ;  or  upon  any  agreement  that  is 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof;  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
thereunto  by  him  duly  authorized."(l)     I  have  collected  and  placed 

the  marriage  did  not  take  jilace  by  reason  of  any  reliance  on  it — i.  e.,  if  it  was  not 
acted  on  as  a  reason  for  the  marriag-e.  Goldicutt  v.  Townsend,  28  Beav.  445  ; 
Jameson  ■?).  Stein,  21  Beav.  5  ;  and  especially  if  it  has  been  waived.  Caton  v.  Caton, 
L.  R.  2  H.  L.  127,  142. 

(1)  29  Car.  II,  ch.  3,  §  4. 

ABSTRACT   OF   THE    AMERICAN   STATUTES . 

The  statutes  of  the  following  American  states  are  identical,  in  legal  effect,  with 
the  English  statute,  with  sometimes  a  slight  verbal  alteration  not  aifecting  the 
meaning.  Any  substantial  variation  is  plainly  indicated.  The  other  special 
forms  of  the  statutes  follow  this  abstract. 

Arkansas  {Eng.  Dig.),  ch.  73,  §  1,  excepting  leases  for  not  more  than  one  year. 

Connecticut  {Oen.  Stat.,  1875),  p.  441,  §  40,  excepting  leases  for  not  longer 
than  one  year. 

Delaware  {Rev.  Code.,  1852),  p.  184,  §  7. 

Florida  {Bush's  Big.  1872),  i).  157,  ch.  29,  §  1,  excepting  leases  for  not  more 
than  one  year. 

Illinois  {Statutes  by  Gross,  1874),  vol.  3,  p.  210,  §§  1  and  2,  except  that  an  agent 
must  be  '*  lawfully  authorized  in  writing,  signed  by  such  party  ;"  and  the  provi- 
sion adds :  "This  section  shall  not  apply  to  sales  [of  lands]  upon  execution,  or  by 
any  officer  or  person,  pursuant  to  a  decree  or  order  of  any  court  of  record  in  the 
state."  "  §  3.  The  consideration  of  any  such  promise  or  agreement  need  not  be 
set  forth  or  expressed  in  the  writing." 

Indiana  {Stat,  by  G.  c&  H).  vol.  1,  p.  348,  ch.  66,  §  1,  except  leases  for  three 
years  or  less.  §  2.  The  consideration  need  riot  be  expressed.  §  5.  "Nothing 
contained  in  any  statute  of  this  state  shall  be  construed  to  abridge  the  power  of 
courts  to  compel  the  specific  performance  of  agreements,  in  cases  of  part  per- 
foi-mance  of  such  agreements."  75.  p.  612,  §  5.  "Contracts  made  by  telegraph, 
between  two  or  more  persons,  shall  be  considered  as  contracts  in  writing." 

Kansas  {Ge7i.  Stat.  1868),  p.  505,  §  6. 

Kentucky  {R.  S.  by  Stanton),  vol.  1,  p.  264,  ch.  22,  §  1,  enacts  that  no  action 
shall  be  maintained,  as  in  §  4,  of  English  statute,  in  a  ninnber  of  specified  cases, 

104 


^[h:}[(H!AM)rM  L'^oriuKD  iiv  statct/::  101 

in  the  foot  note,  an  abstract  oi"  tlu^  coiTespoiidiu^'  jirovisions  of  tin* 
statutes  of  the  various  Ainericau  states.  'J'hese  statutes  an?  of  two 
generic  classes.     In  certain  states,  the  letfislation  is  substantially  the 

iiiclmling  some  not  in  the  E.i^''lish  siiituty,  ami  <Mul)ra<.'iiij^:  ').  C..ontra»;ts  nj)on 
consideration  of  niarriafje,  except  mntual  i)r<>niises  to  marry.  G.  (.'ontracts  for 
sale,  etc.,  of  lands,  except  lesises  for  one  year.  7.  Conti-acts  not  to  be  perfoi-med 
within  one  yeai-,  unless,  etc.,  as  in  Englisli  §  4,  but  the  menioi-amlum  must  be 
"signed  at  the  close  thereof ;"  and  tlie  consiilei-ation  nee<l  not  be  expressed  in 
the  writinir. 

Maine  (R.  S.  1871),  p.  786,  ch.  Ill,  f  1.    The  consideration  need  not  be  expressed. 

Massachusetts  (Ge?i.  Stat.  ed.  of  1878).  p.  527,  ch.  105,  §  1,  same  as  §  4  of  the 
English  statute  ;  §  2,  consideration  need  not  be  expressed.  lb.  p.  558,  ch.  113,  §  2, 
confers  equity  jni-isdiction  upon  the  supreme  coui-t  in  **'•'*  *'  Suits  for  the  spe- 
citic  pei-formance  of  wi-itten  contra(;ts,  l)y  and  against  either  party  to  the  contract 
and  his  heirs,  devisees,  executors,  aibninistrators,  and  assigns,"  *  *  *  *  "and 
shall  have  full  efjuity  jurisdiction,  according  to  the  usage  and  practice  of  courts 
of  equity,  in  all  other  cases  where  there  is  not  a  iiiain,  adecjuate,  and  complete 
remedy  at  law." 

Messouri  (Ge)i.  Stat,  by  Wagner,  1870),  vol.  1,  p.  G50,  ch.  62,  §  5,  the  same  as 
§  4  of  the  English  statute. 

New  Jersey  (Nivoii's  Dig.  Ath  ed.  1868),  p.  358,  ^  14,  the  same  as  §  4  of  the 
English  statute. 

New  Hampshirk  (6re?t.  Stat.  1867),  p.  407,  ch.  201,  ^  12,  is  the  same  as  the 
clause  concerning  lands  in  §  4  of  the  English  statute,  except  the  agent  must  be 
"  by  him  thereto  authorizeil  in  writing  ;  "  §  13  is  the  same  as  the  remaining  clauses 
of  the  English  §  4. 

Ohio  {R.  S.  by  Swan  &  Critchfield,  1870),  vol.  1,  p.  659,  ch.  47,  §  5,  same  as  §  4 
of  the  English  statute. 

Pennsylvania  (Brightley'.H  Pardon's  Dig.,  1872),  vol.  1,  p.  724,  §  4,  includes  only 
the  clauses  concerning,  1,  promises  of  executor,  etc  ,  to  answer  for  debt  of 
deceased  out  of  his  own  estate ;  and  2,  promises  to  answer  for  tiie  debt  or  default 
of  another  the  same  as  in  §  4  of  the  English  statute.  The  Penn.'iylvama  Legislature 
has  not  enacted  any  provision  in  relation  to  the  other  matters  embraced  in  the 
general  form  of  the  statute  of  fi-auds. 

Tennessee  {Stat,  of  1871).  vol.  1,  §  1758,  is  the  same  as  §  4  of  the  English  statute, 
except  that  it  reads  "unless  the  proitii.^e  or  agreement,"  etc.,  be  in  writing,  and 
also  leases  for  not  more  than  one  year  are  excepted. 

Texas  (Fasch.  Dig.),  p.  649,  §  3875,  the  same  as  the  English  §  4,  with  the  .same 
variations  as  in  Tennoi-iee. 

Rhode  Island  {Gen.  Stat.,  1872),  p.  443,  ch.  193,  §  8,  same  as  English  §  4. 

Ver.mont  {Gen.  Stat.,  ed.  of  1870),  p.  452,  ch.  66,  §  1,  is  same  as  the  Engli.sh  §  4, 
except  that  it  commences  :  "No  action  at  law  or  in  equity  shall  lie,"  etc.;  and  in 
contracts  relating  to  real  estate  an  agent  must  be  authorized  in  writinir. 

Virginia  {Code,  1849),  ch.  143,  §  1,  includes  all  the  clauses  of  the  English  §  4. 
together  with  some  others,  with  the  following  change  in  the  language  :  "  unless 
the  promise,  contract,  agreement,  representation,  assurance,  or  ratification."  etc., 
be  in  writing,  and  adds  that  the  consideration  need  not  be  exjiressed  in  the 
writing. 

West  Virginia  {Code,  1868),  p.  .535,  ch.  98,  §  1,  same  lus  the  Virginia  statute  as 
last  al)ove  described. 

105 


102  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

same  in  its  language,  and  identical  in  its  legal  effect  with  the  English 
enactment.  In  the  others,  a  consideral)le  change  has  been  made  in 
the  language,  a  departure  from  the  original  type,  which  might  have 

New  York,  2  (R.  S.,)  p.  135,  Tit.  1,  "Of  fraudulent  conveyances  and  contracts 
relative  to  lands  :  " 

"§  8.  Every  conti-act  for  the  leasing',  for  a  long-er  period  than  one  year,  or  for 
the  sale  of  any  lands,  or  any  interest  in  lands,  shall  be  void  unless  the  contract, 
or  some  note  or  memorandum  thereof,  expressing  the  consideration  be  in  wi'iting, 
and  be  subscribed  by  the  party  by  whom  the  lease  or  sale  is  to  be  made. 

"  §  9.  Every  instrument  required  to  be  subscribed  by  any  party  inider  the  last 
pi'eceding  section,  may  be  subscribed  by  the  agent  of  such  party  lawfully  author- 
ized. 

"  §  10.  Nothing  in  this  title  contained  shall  be  construed  to  abridge  the  powei-s 
of  courts  of  equity  to  compel  the  specific  performance  of  agreements  in  cases  of 
part  performance  of  such  agreements." 

lb.  p.  140,  Tit.  2,  "Of  fraudulent  conveyances  and  contracts  relative  to 
goods,  chattels  and  things  in  action  : 

"  §  2.  In  the  following  cases  every  agreement  shall  be  void,  vinless  such  agree- 
ment, or  some  note  or  memorandum  thei-eof  [expressing  the  consideration],  be 
in  writing,  and  subscribed  by  the  jjarty  to  be  charged  therewith :  1.  Every 
agreement  that,  by  its  terms,  is  not  to  be  performed  within  one  year  from  the 
making  thereof.  2.  Every  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  pei-son.  3.  Every  agreement,  promise,  or  undertaking 
made  upon  consideration  of  marriage,  except  mutual  promises  to  marry."  (As 
amended  by  Laws  of  1863,  ch.  464,  which  struck  out  the  words  "expressing  the 
consideration,"  inclosed  in  brackets,  which  words  had  previously  been  a  part  of 
the  provision.) 

Alabama  {Rev.  Code,  1867),  p.  411,  §  1862  :  "  In  the  following  cases  every 
agi'eement  is  void  unless  such  agreement,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration  be  in  writing  and  subscribed  by  the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  lawfully  authorized  :  1.  (Not 
to  be  performed  within  one  year).  (3.  Debt,  etc.,  of  another).  4.  (On  considera- 
tion of  marriage;  all  as  in  N.  Y.)  6.  "Every  contract  for  the  sale  of  lands, 
tenements  or  heriditaments,  or  of  any  interest  therein,  except  leases  for  a  term 
not  longer  than  one  year,  unless  the  purcliase-inoney,  or  a  portion  thereof,  he  paid, 
and  the  purchaser  he  put  in  p)ossession  of  the  land  bij  the  seller." 

California  (C*«)iZ  Code,  187  ),  §1624:  "  The  following  contracts,  or  some  memo- 
randum thereof,  expressing  the  parties,  their  consent,  and  the  object  of  the  con- 
tract, must  be  in  writing,  subscribed  by  the  party  to  be  charged  thereby,  or  by 
his  agent  for  the  purpose  :  1.  An  agreement  that,  by  its  terms,  cannot  be  fully 
performed  within  one  year.  2.  (Agreement  upon  consideration  of  marriage,  as 
in  N.  Y.) " 

§  1741.  "No  agreement  for  the  sale  of  real  property,  or  of  any  estate  therein, 
other  than  an  estate  for  a  term  not  exceeding  one  year,  is  valid  unless  a  memo- 
randum thereof,  showing  the  parties,  their  consent,  and  the  subject  of  the  sale  is 
made  in  writing,  and  subscribed  by  the  party  to  be  charged,  or  his  agent  there- 
unto atithorized  in  iiiriting,  or  unless  the  contract  has  been  part  performed  by 
the  party  seeking  to  enforce  it.  and  such  part  performance  has  been  accepted  by 
the  other." 

Iowa    (Rev.    Code,    187.3).  §   3663:     "No   evidence    of        ntracts    einnnerated 

106 


led  to  a  fiindameutiil  (lifference  in  the  interpretation  and  Ic^'^al  ottcct. 
No  such  diffpi'ou('(\  however,  apjx^u's  to  have  arisen,  except  in  refer- 
ence to  minor  matters  of  detail,  where  th(»  terms  of  the   statutes  are 

in  the  next  succeeiling  section  is  competent,  unless  it  he  in  wiitiiif,'-  ami  si','-in'(l 
by  the  party  charj^'ed,  or  by  his  lawfully  avthoiized  aj^ent."  §  3tJG4.  "  Sui  li 
contracts  enabrace :  1.  (Sales  of  jiersonal  proi)eity.)  2.  (On  consideration 
of  marriage.)  3.  (Guaranties,  etc.)  4.  "Those  for  the  creation  or  transfer 
of  any  interest  in  lands,  except  leases  for  a  term  not  exceeding  one  year." 
5.  (Not  to  be  performed  within  a  year.)  §3665.  "*  *  *  jj,„.  j„  ty,^,  pi-o- 
visions  of  the  fourth  subdivision  of  the  preceeding  section  apply  where 
the  purchase-money,  or  any  part  thei-enf,  has  been  received  by  the  vendor ; 
or  where  the  vendee,  with  the  actual  or  implied  consent  of  the  vendor,  hsus  taken 
and  held  jxissession  thereof  under  and  by  virtue  of  the  conti-act;  oi-  where 
there  is  any  othei*  circumstance  which,  by  the  law  heretofore  in  force,  would  have 
taken  a  case  out  of  the  statute  of  frauds."  §  3660.  "  The  above  i-egulations,  relat- 
ing merely  to  the  proof  of  conti-acts,  do  not  prevent  the  enforcement  of  those  which 
are  not  denied  in  the  pleadings,  except  when  the  contract  is  to  be  enforced,  or 
damages  to  be  recovt-red.  against  some  person  other  than  him  who  made  it." 
[See,  also,  §  3667.     Dewey  v.  Life,  60  Iowa,  361  ] 

Michigan  {Comp.  Laxos,  J 871),  vol.  2,  p.  1455,  ch.  166,  §  8,  is  the  same  as  N.  Y. 
§  8,  concerning  leasing  or  selling  lands,  except  that  the  words  "expressing  the 
consideration  "  are  omitted,  and  the  words  "  or  by  some  person  thereunto  by  him 
lawfully  authorized  by  writing"  are  added  in  place  of  the  N.  Y.  §  9. 

§  9.  The  considei-ation  need  not  be  expressed  in  the  writing.  §  10.  Is  exactly 
the  same  as  the  N.  Y.  §  10  relating  to  specific  performance. 

Minnesota  {Stat,  at  Large,  1873),  vol.  1,  p.  692,  §  12,  is  exactly  the  same  as  the 
N.  Y.  §  8,  concerning  leasing  or  selling  lands  ;  §  13  is  the  same  as  the  N.  Y.  §  10, 
concerning  specific  performance.  Ibid.,  p.  691,  §  6  :  "No  action  shall  be  main- 
tainable, in  either  of  the  following  cases,  upon  any  agreement,  unless  such  agree- 
ment, or  some  note  or  memorandum  thereof  exi)ressing  the  consideration  is  in 
"writing,  and  subsci-ibed  by  the  paity  to  be  chai'ged  therewith,"  viz :  1,  those  not 
to  be  performed  within  a  year  ;  2,  guaranties,  etc.  ;  3,  those  upon  consideration 
of  mari'iage  except  mutual  promises  to  marry. 

Nebraska  (Gen.  Stat.,  1873),  p.  392,  ch.  25,  §  5,  is  the  same  as  the  N.  Y.  §  8, 
concerning  leasing  or  selling  lands,  excejit  that  "  signed  "  is  used  instead  of  "  sub- 
scribed," and  "  expressing  the  consideration  "  is  omitted  ;  §  6  is  the  same  as  N.  Y. 
§  10,  concerning  specific  performance  ;  §  8  is  the  same  as  the  N.  Y.  §  2  of  tit.  2, 
p.  140,  exceijt  that  "expressing  the  consideration  "  is  omitted  ;  §  24,  in  all  these 
agreements  the  consideration  need  not  be  expressed  ;  and  §  25,  every  agreement 
to  be  subscribed  by  a  paity  may  be  subscribed  by  his  agent  "authorized  by 
writing." 

North  Carolina  {Rev.  Code,  1855),  p.  300,  ch.  50,  §  11.  "All  contracts  to  sell 
or  convey  any  lands,  tenements,  or  hereditaments,  or  any  interest  in  oi-  concerning 
them  ;  and  all  leases  or  contracts  for  leasing  land  for  the  jjurpose  of  digging  for  gold 
or  other  iniiieraLs,  or  for  the  purpose  of  mining  generally,  shall  be  void  and  of  no 
effect,  unless  such  contract  or  lease,  or  some  memorandum  or  note  thereof,  shall 
be  put  in  writing,  signed  by  the  party  to  be  charged  therewith,  or  by  some  other 
person  by  him  thereto  lawfully  authojized,  except  leases  and  contracts  for  leases 
(other  than  those  above  named),  not  exceeding  in  duration  the  tei-m  of  three 
years." 

Okkijo.v  {Gni.  LnwH.  hy  Diddji,  1872),  ]).  264.  ch.  8.  ^  775.      "In   the   following 

107 


104  SPKCIFir  I'h:RFnRMAN(.'R   OF  roNTRAcrs. 

peremptory.  From  the  language  of  the  prohibition — "no  action  shall 
be  brought" — it  lias  long  been  the  settled  rule  of  construction,  both  in 
England  and  in  those  states  which  have  ad()i)ted  the  same  formula, 
that  the  statute  does  not  go  to  the  very  substauce  of  a  contract,  and  ren- 
der it  a  nullity,  -when  not  in  writing;  the  statute  relates  exclusively 
to  the  procedure,  and  simply  furnishes  a  rule  of  evidence,  by  which 
all  agreements  falling  within  its  scope  nuist  be  establisli('d.(l)  This 
interpretation  lies  at  the  foundation  of  the  jurisdiction  assumed  by 
courts  of  equity  to  enforce  verbal  contracts  in  cases  of  a  part  perform- 
ance. In  many  of  the  states,  as  it  will  be  seen  from  the  accompanying 
abstract,  the  legislatures  have  altered  the  language  of  this  })rohibitiou, 
and  have  declared  the  contracts  specified  by  the  statute  /o  be  void 
unless  written.  Except  in  one  or  two  of  the  states,  however,  this 
change  in  the  phraseology  has  produced  no  important  change  in  the 
judicial  i'.iterpret:itiou  of  the  provision.  The  various  doctrines  and 
rules,  which  had  been  settled  by  the  English  courts,  have  been  gen- 
erally adopted  and  enforced  by  tli(3  American  tribiuials,  and  especially 
the  equitable  principle  with  respect  to  the  part  performance  of  verbal 
contracts,  has  been  followed  without  hesitatioii  in  all  the  states,  with 
a  very  few  exceptions,  without  any  regard  to  any  difference  in  th(; 
formal  language  employed  by  the  legislatures. 

Sec.  71.  The  controlling  motive  of  the  statute  is  one  of  exped- 
iency and  convenience  and  this  motive  has  always  been  kept  in  view 
by  the  ablest  courts  in  their  work  of  interpretation.  As  its  primary 
jobject  is  to  prevent  mistakes,  frauds,  and  perjuries,  by  substituting' 
written  for  oral  evidence  in  the  most  important  classes  of  contracts, 
the  courts  of  equity  have  established  the  principle,  which  they  apply 

cases  the  agreement  is  void  unless  the  same,  or  some  note  or  memorandum  thei-eof 
expressing:  the  consideration,  be  in  writing  and  subscribed  by  the  party  to  be 
charged,  or  by  his  lawfully  authorized  agent ;  evidence,  therefore,  of  the  agree- 
ment shall  not  be  received  other  than  the  writing  or  secondary  evidence  of  its 
contents  in  the  cases  prescriljed  by  law,"  viz  :  1,  agreements  not  to  be  jierformed 
within  one  year;  2,  jiromises  to  answer  for  the  debt,  etc.,  of  another ;  3,  promises 
by  an  executor,  etc.  ;  4,  agreements  upon  the  consideration  of  marriage  other 
than  a  mutual  promise  to  mai-ry  ;  5,  "  an  agi-eement  for  the  leasing  for  a  longer 
period  than  one  yeai',  or  for  the  sale  of  real  property,  or  of  any  interest  therein  ; 
6,  an  agreement  concerning  real  property  made  by  an  agent  of  the  party  sought 
to  be  charged,  unless  the  authority  of  the  agent  be  in  writing." 

Wisconsin  {Taylor's  Stat.,  1871),  vol.  2,  p.  1254,  ch.  10(j,  §  8,  is  the  same  as  the 
N.  Y.  §  8,  concerning  lands  ;  §  9,  is  identical  with  the  N.  Y.  §  9,  relative  to  the 
subscription  by  an  agent ;  §  10,  is  identical  with  the  N.  Y.  §  10,  concerning  the 
power  of  equity  to  enforce  contracts  in  cases  of  jiart  performance.  Ibid.,  p.  1255, 
ch.  107,  §  2,  is  the  same  as  the  N.  Y.  §  2  of  tit.  2,  p.  140,  except  that  the  words 
*'  exjiressing  the  consideration  "  are  i-etained. 

(1)  [Magee  v.  Blankenship,  i).j  N.  C.  563.] 
108 


MK.}foi:A.\i)U.n  iiK(jfnn:i>  nv  sTArrrK.  105 

under  various  circumstances,  that  it  shall  not  be  used  as  an  iustruint'iit 
for  tlie  accomplishment  of  fraudulent  piu'poses ;  desi^nie<l  Tit  [.rcvfut 
fraud  it  shall  not  be  pormitttMl  to  work  fraud.  This  principii'  lii-s  at 
the  basis  of  the  doctrine  coiici'mini:  part  performance,  but  is  also 
enforced  wherever  it  is  necessary  to  secure  eipiitable  results. (J) 

iSfiC,  72.  As  the  agreement  of  the  parties — their  mental  con.sensm — 
is  always  the  substantial   fact,  and  as  the  written   memorandum  is 


(1)  Jervis  v.  Berridge,  L.  R.  8  Ch.  351,  is  iin  exuinple.  The  plaiiititi"  had  agreed 
to  buy  an  estate  from  the  L.  Society,  and  to  pay  a  deposit  on  sig-niii-r  the  contract. 
Before  sig-ning-  plaintiff  agreed  with  B.  to  assign  it  to  him  on  certain  terms.  For 
B's  convenience  plaintiff  gave  him  a  memorandum  assigning  the  contract  to  him 
in  consideration  of  his  paying  the  deposit  to  the  L.  Society,  and  agreeing  to  pay  a 
certain  sum  to  the  plaintiff;  the  other  terms  of  the  verbal  bargain  between  the 
plaintiff  and  B.— which  were  favorable  to  the  plaintiff— were,  at  B's  request, 
omitted  from  this  written  memorandum.  The  contract  between  the  plaintiff  and 
the  L.  Society  was  then  signed  ;  the  counterpart  executed  by  the  so(-i(>ty  was 
delivered  to  B.,  and  he  paid  the  deposit.  B.  afterwards  repudiated  all  the  stipula- 
tions in  plaintiff's  favor  which  had  not  been  inserted  in  the  memorandum.  Plaintiff 
then  filed  this  bill  against  B.  and  the  L.  Society  asking  to  have  the  memorandum 
between  B.  and  himself  canceled,  and  that  the  L.  Society,  should  convey  the  estate 
to  himself  on  his  payment  of  what  was  due.  Held,  by  the  Lords  JJ.  affirming  the 
decision  of  V.  C.  Malins,  that  B's  demurrer  shouhl  be  overruled,  since  the  lorittert 
ineDwrandum  was  only  ancillarii  to  the  verbal  bargain  between  B.  and  tJte  plaintiff, 
and  any  use  of  it  by  B.  foi'  a  purpose  inconsistent  with  that  bargain  was  fraudit- 
lent  and  should  not  be  permitted  ;  but  as  B.  had  repudiated  that  bai-gain  plaintiff 
could  fall  back  on  his  original  rights  under  his  agreement  with  the  L.  Society. 
See,  also,  Haigh  v.  Kaye,  L.  R.  7  Ch.  469.  It  is  not  within  the  scope  of  this  work 
to  discuss  the  question  :  What  contracts  are  within  the  statute  of  frauds 't  But  I 
add  here  a  few  recent  cases  in  which  this  subject  is  considered.  Strehl  v.  D'Evers, 
66  111.  77  (a  verbal  contract  for  the  sale  of  a  stock  of  goods  with  a  verbal  agree- 
ment to  give  a  lease  of  the  store  for  three  years  not  enforced)  ;  Cole  V.  Cole,  41 
Md.  301  (a  verbal  contract  to  give  a  mortgage  ;  C.  having  i)urchased  land,  bor- 
rowed from  A.  the  money  with  which  to  pay  the  price,  vei-bally  agreeing  to  give 
A.  a  mortgage  on  the  land  as  security  for  the  loan.  C.  then  had  the  conveyance 
made  to  his  own  wife,  who  knew  all  the  facts,  and  then  refused  to  give;  the  mortgage. 
Held,  the  contract  with  A.  would  be  enforced  by  a  sale  of  the  land,  if  necessary.) 
"Wilson  V.  Chicago,  etc.,  R.  R.,  41  Iowa,  443  (verbal  agreement  to  convey  a  certain 
interest  in  land,  held  void)  ;  Somerby  v.  Benton,  118  Mass.  278  (a  verbal  agree- 
ment by  an  inventor  to  assign  an  interest  in  an  expected  patent  right  enforced)  ; 
Moote  V.  Scriven,  33  Mich.  500  (a  verbal  agreement  to  advance  money  for  the 
purchase  of  lands,  and  for  the  removal  of  incumbrances  on  them,  which  lands 
were  to  be  conveyed  to  the  promissce  on  his  repayment  of  the  advance,  hekl 
void) ;  Levy  v.  Bush,  45  N.  Y.  589  (a  verbal  agreement  by  which  one  paj-ty 
jji'omises  to  bid  off  cei-tain  land  in  his  own  name,  and  enter  into  a  contract  of 
purchase,  and  advance  his  own  funds,  the  whole  to  be  done  for  thd  joint  benefit 
of  himself  and  the  other  party,  and  the  other  party  promises  to  reimbui-s<»  one- 
half  of  the  pi'ice,  held  void)  ;  Henry  v.  Colby.  3  Bi-ews.  (Pa.)  171  (a  verbal  con- 
tract for  the  sale  of  an  interest  in  an  oil  well  held  within  the  statute). 

109 


106  SPECIFIC   rEIihOHMAKCE    OF  COi\'Jh'ACTS. 

ancillary  to  it,  the  evidence  by  which  the  fact  is  to  be  established,  if 
the  nienioranduni  contains  all  the  essential  featnres  of  the  contract, 
its  external  form  is  of  little  importance.  The  agreement  itself,  with 
all  its  technical  phraseology  and  binding  clauses,  need  not  be  spread 
out  in  the  form  of  a  legal  instrument ;  the  statute  is  satisfied,  if  all  its 
constituent  terms  can  be  gathered  from  a  writing  or  writings  properly 
signed,  and  not  from  oral  testimony  resting  in  the  memory  of  wit- 
nesses. It  is  not,  of  course,  wdthin  the  design  of  the  present  volume 
to  enter  into  any  general  discussion  of  the  statute  of  frauds.  It  wall 
be  enough  to  state  and  explain  the  rules  wliich  have  a  direct  and 
practical  application  to  the  equitable  leniedy  of  si)ecific  performance. 
I  shall  consider  the  written  memorandum  r3quired  by  the  statute 
under  three  principal  heads :  1.  The  mode  of  executing  it.  2.'  The 
external  form.  3.  Its  contents. 
Hovr  the  memorandum  should  be  executed. 

Sec.  73.  1.  The  origiiuil  statute,  as  copied  in  certain  states,  requires 
that  the  memorandum  shall  be  "signed"  by  the  "party"  to  be  charged 
therewith,  or  by  his  agent  thereunto  duly  authorized.  The  rule  is 
settled,  though  with  some  conflict  of  opinion  upon  certain  points,  that 
wherever  this  language  is  used,  the  name,  if  intended  to  be  a  signa- 
ture, and  to  authenticate  the  instrument,  and  not  written  for  some 
other  specific  purpose,  may  be  placed  in  any  part  of  the  memorandum, 
at  the  beginning,  or  in  the  body  of  it,  as  well  as  at  the  end.(l)     The 


(1)  Ogilvie  V.  Foljambe,  3  Mer.  53,  where  a  letter  commencing  :  "  Mr.  Foljambe 
presents  his  compliments,"  etc.,  was  held  to  be  a  memoi-andum,  duly  signed. 
Propert  v.  Parker,  1  R.  &  Myl.  625,  where  a  memorandum,  written  by  A.,  began  : 
"  A.  has  agreed  ; "  Bleakley  v.  Smith,  11   Sim.  150,  the  memorandum  written  by 

A.  began :  "  B.  agreed  with  A.,"  etc.  ;  Barkworth  v.  Young,  4  Drew,  1,  an  affidavit 
made  by  a  party  was  held  a  sufficient  memorandum  ;  "Western  v.  Russell,  3  V.  & 

B.  187;  Morison  v.  Tumour,  18  Ves.  175;  Penniman  v.  Hartshorn,  13  Mass.  87; 
Hawkins  v.  Chace,  19  Pick.  502 ;  Yerljy  v.  Grigsby,  9  Leigh.  387  ;  McConnell 
V.  Brillhart,  17  111.  354 ;  Johnson  v.  Dodge,  17  111.  433  ;  Higdon  v.  Thomas,  1 
Har.  &  Gill,  139  ;  Barry  v.  Coombe,  1  Pet.  640 ;  [Tingley  v.  Bellingham  Bay 
Boom  Co.  5  Wash.  St.  644.]  The  English  law,  as  to  signing,  is  discussed  and 
determ.ined  in  the  late  case  of  Caton  v.  Caton,  L.  R.  2  H.  L.  127.  This  caso 
decided  that,  though  it  is  not  necessary  that  the  signature  of  a  party  should, 
within  the  statute  of  frauds,  which  requires  the  memorandum  to  be  "signed," 
be  placed  in  any  particular  part  of  a  written  instrument,  it  is  necessary  that 
it  should  be  so  introduced  as  to  govern  or  authenticate  every  material 
and  operative  part  of  the  instrument.  Where,  therefore,  the  name  of  the 
party  against  whom  specific  performance  was  sought  to  be  enforced,  ajDpeai-ed 
in  different  parts  of  the  paper,  but  only  in  such  a  way  that  in  every  case  it 
merely  i-eferred  to  the  particular  jjart  where  it  was  found,  and  that  part  was 
in  the  form  of  reference  or  description,  and  not  of  promise  or  undertaking ; 
Held,  the  writing  was  not  a  memorandum  sufficiently  signed,  under  the  statute. 

110 


MEMORAXOrM    lihiJIIUKI)    I!  V    STATl'TK.  107 

agreemetit  may  be  written  on  a  paper  wliich  already  contains  the 
name,  it'  tlie  writing-  is  intended  to  be  a  memorandum  an<l  tlie  nauH^ 
to  be  a  signature. (1)  The  delivery  of  the  memorandum  indicates  an 
intention  that  the  name  written  in  it  sliould  have  the  effect  of  a  .sig- 
nature.(2)  There  is  some  apparent  conflict  at  least  among-  tlie  decisions 
on  the  question,  how  far  the  party  mus^  have  intended  the  writing  of 
his  name  to  be  a  signiiig  of  the  memorandum.  In  certain  cases  the 
memorandum  was  held  to  have  been  duly  signe<l,  although  the  name 
did  not  appear  to  liave  been  written  with  such  intent. (3)  Otlier  cases, 
involving  similar  facts,  have  been  otherwise  decided  upon  the  evident 


The  facts  were  briefly  as  follows  :  C,  proposing'  to  mai-iy  Mrs.  II.,  who  had  proj)- 
erty  of  her  own,  verbally  ag-reed  to  settle  her  property  on  her  in  snch  way  that  she 
should  have  a  certain  income  from  it  during-  his  life,  and  the  whole  absolutely  on 
his  death.  To  carry  out  this  agreement,  he  wrote  out  the  pajjer  in  question, 
beginning  thus  :  "  In  the  event  of  a  marriage  between  the  undermentioned  parties, 
the  following  conditions,  as  the  basis  of  a  marriage  settlement,  are  mutually 
agreed  upon."  Then  followe<i  .several  clauses,  each  beginning  in  this  f()rm:"C. 
to  do  so  and  so  ;  H.  to  have  so  and  so  ; "  but  there  was  no  subscription  or  signing- 
by  either  party.  The  settlement  was  not  made,  and  C  died  afterwards,  leaving 
a  will,  by  which  he  bequeathed  nearly  all  the  property  which  he  had  received 
from  his  wife  to  his  own  relatives.  His  widow,  as  shown  above,  failed  in  her 
attempt  to  enforce  the  agreement  against  her  husband's  legatees.  It  will  be  diffi- 
cult, in  my  opinion,  to  i-econcile  a  consideralile  number  of  former  cases  with  this 
decision.  And,  granting  that  the  general  principle  laid  down  by  the  court  is 
undoubtedly  true,  it  is  difficult  to  see  its  application  to  the  wi-iting  in  question. 
It  would  seem  that,  by  a  fair  and  reasonable  construction,  each  clause  in  tiie  form 
of  "C.  to  do  so  and  so  with  the  projierty,  and  H.  to  have  such  and  such  rights  ovei* 
it,"  was  something  more  than  a  mere  "  reference  or  description,"  and  was  plainly 
a  "  promise  or  undertaking,"  on  the  part  of  C.  The  decision  of  this  case  certainly 
worked  the  greatest  injustice  to  the  widow,  who  had  plainly  been  the  victim  of  a 
deliberate  swindle  throughout  the  whole  transaction. 

(1)  Wise  V.  Ray,  3  Green  (la),  430  ;  McConnell  v.  Brillhart,  17  111.  3.>4  ;  Bluck  v. 
Gompertz,  7  Exch.  8(52,  per  Pollock,  C.  B.  :  "  We  think  that  words  introduced 
into  a  pajier  signed  by  a  party,  or  an  alteration  in  it,  may  be  authenticated  by  a 
signature  already  on  the  paper,  if  it  is  jilain  that  they  were  meant  to  be  so 
authenticated.  The  act  of  signing  after  the  introduction  of  the  words  is  not  abso- 
lutely necessary." 

(2)  Johnson  v.  Bi'ook.  31  Miss.  17. 

(3)  Saunderson  ?\  .Jackson,  2  B.  &  P.  239,  where  a  party  wrote  his  name  at  the 
beginning  and  left  a  jilace  for  his  signature  at  the  end,  from  which  it  was  inferred 
"  that  the  insertion  of  the  name  at  the  beginning  was  not  intended  to  be  a  signa- 
ture, and  that  the  paper  was  meant  to  he  incomj)lete  luitil  it  was  furthei*  signed," 
lind  still  the  name  was  held  to  be  a  good  signature  ;  and  see  Knight  ■?'.  Crockford, 
1  Esp.  190.  And  where  the  party  or  pei-son  to  be  bound  signs  the  writing  a-s  a 
witness,  his  signature  has  been  held  sufficient  in  Welford  v.  Beazely,  3  Atk.  503  ; 


Coles  V.  Trecothii;k.  9  Yes.  234.  231. 


Ill 


108  SI'KCIFIC    PERFORMATIVE    OF   CONTRACTS. 

intention  of  tlie  party  that  lii.s  name  should  not  be  a  signature. (1)  Thi* 
contiict  is,  however,  not  real.  In  the  first  group  of  cases  the  writing 
showed  an  intention  of  the  person  to  be  bound ;  his  name  clearly- 
appeared  either  at  the  beginning  of  the  instrument,  or  at  the  bottom 
of  it,  and  there  was  nothing  else  appearing  on  the  face  of  the  writing 
to  which  the  name  could  be  referred,  except  to  its  being  the  signa- 
ture. In  other  words,  the  intention  to  sign  the  memorandum  was 
legally  inferred,  and  could  not  be  defeated  by  any  speculation  as  to 
the  motives  of  the  party.  In  the  other  group  of  cases  the  intention 
not  to  sign  was  clearly  indicated  by  the  form  and  terms  of  the  instru- 
ment. Whenever  the  party'.j  name  is  inserted  in  the  body  of  the 
instrument,  not  as  a  signature,  but  for  some  other  special  purpose,  the 
memorandum  is  not  duly  "signed"  as  required  by  the  statute. (2) 
All  occasion  and  possibility  of  these  doubts  and  nice  distinctions  have 
been  removed  by  wise  alterations  made  in  the  language  of  many  state 
statutes,  which  require  the  memorandum  to  be  '•  subscribed"  by  the 
party,  etc.  Wherever  this  form  of  the  provision  is  found,  it  is  settled 
that  the  signature  must  be  placed  at  the  foot  of  the  instrument,  after 
all  the  operative  part  of  the  writing. (3) 
The  signature,  ho"w  made. 

Sec.  74.  The  signing  must  be  effected  by  actually  writing  the  name, 
or  by  writing  or  affixing  something  which  is  designed  to  take  the  place 
of  and  be  equivalent  to  the  name,  as  a  mark  made  by  one  who  cannot 
write,  or  initials. (4)  The  signature  may  be  in  pencil, (5)  and  even 
printed. (6)  The  effect  of  all  the  exceptional  modes  depends  upon  the 
intention.  If  a  mark,  or  initials,  or  writing  the  name  with  a  pencil, 
or  printing  it,  is  intended  to  be  a  signature,  to  take  the  place  of  a 
formal  writing  the  name  w4th  ink,  then  the  memorandum  is  "signed" 
to  all  intents  and  purposes. 

(1)  Gosbell  V.  Archer,  2  A.  &  E.  500  ;  Hubert  v.  Treherne,  3  Man.  &  Gr.  743. 

(2)  Stokes  V.  Moore,  1  Cox,  219 :  Hawkins  v.  Holmes,  1  P.  Wms.  770 ;  Cowie 
•w.  Remfry,  10  Jur.  789;  Cabot  v.  Haskins,  3  Pick.  83.  [See,  also,  Guthrie  v. 
Anderson,  47  Kan.  383.] 

(3)  Davis  V.  Shields,  26  Wend.  341,  reversing  24  Wend.  322  ;  Viele  v.  Osgood.  8 
Barb.  130 ;  .Tames  v.  Patten,  6  N.  Y.  9,  reversing  8  Barb.  344 ;  Coles  v.  Bowne, 
10  Paige,  520;  Champlin  v.  Parish,  11  Paige,  405;  [Worthington  Brick  Co.  v.  Bull, 
44  Him,  402.] 

(4)  Selby  v.  Selby,  3  Mer.  2.  A  letter  began,  "My  dear  Robert,"  and  ended, 
"  Do  me  the  justice  to  believe  me  the  most  affectionate  of  mothers ; "  it  was  held 
not  to  be  "signed."  By  iJiitials,  see  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How. 
(U.  S.)  446  ;  [but  see  Worthington  Brick  Co.  v.  Bull,  44  Hun,  462]. 

(5)  Lucas  V.  James,  7  Ha.  410,  419. 

(6)  Schneider  v.  Norris,  2  M.  &  S.  280  ;  Saunderson  v.  Jackson,  2  B.  &  P.  239  ; 
Draper  v.  Pattina,  2  Sjieers.  292  ;  M;'ri-itt  v.  Clason,  12  Johns.  102  ;  McDowel  v. 
Chambers.  1  Strnbh.  l^i.  34  7;  Comm.  v.  Rav,  3  Grav,  447;  Lerued  v.  Wanne- 
innche,  9  Allen,  412,  417— Stamping  ;  Pitts  r.  Beckett,  1:/M.  &  W.  743  ;  Boardman  v. 
Spooner.  13  Allen,  353;  S("hneider  v.  Norris,  2  M.  &  S.  2  0.  A  telegraph  Mes- 
sage, if  signed  liy  the  defendant,  and  full  enough  to  show  all  the  terms  of  the 
contract,  is  a  suffi"ient  memoi-anduni ;  Ti-evor  v.  Wood,  30  N.  Y.  307  ;  Hazard  y. 
Day,  14  Allen,  487  ;  and  to  the  same  effect  are  the  statutes  in  several  states. 

112 


MKMOHAXDI'M    UEQllliKl)    IIV  STATUTE.  KH) 

By  -what  parties  to  be  signed. 

Sec.  75.  From  the  lanyiKii^i'  of  tlio  ja-ovision  that,  tlic  a::!<  <•- 
meat  or  nieuioraiidiim  thereof  shall  be  si^-ned  by  the  party  to  l)o 
charged  therewith,  tht;  rule  is  settled  in  England,  and  has  l>e(  n 
generally  followed  in  this  .eountry,  that,  so  far  m  the  slalule  of 
frauds  affects  the  contract,  a  signing  by  both  parties  is  not  neces- 
sary, but  it  is  suflicient,  if  the  agreement  or  menioranduni  is 
signed  by  the  party  against  whom  it  is  enforced,  or  atteniitted  to  be 
enforced  (1)     This  rul(%  whidi  antse  from  a  literal   interpretation  of 

(1)  Ilattcn  U.Grey,  5  Vin.  Abv.  'yl'),  \A.  4;  2  C&a.  in  Ch.  1(54;  Buckhou.'^ii  v. 
Crosby,  2  Eq.  Cas,  Ahr.  32,  ])1.  44;  Coleman  v.  Upcot,  5  Yin.  khv.  5_'7,  \A.  17; 
Child  V.  Comber,  3  Sw.  423,  n.  ;  IJackhouso  v.  ^Moluin,  3  Sw.  434,  n.  ;  Seton  v 
Siado,  7  Ves.  265  ;  Lord  Ormond  ij  •  Anderson,  2  Ball  &  B.  303  ;  Fowic  v.  Freeman, 

9  Ves.  351 :  Western  v.  Russell,  3  V.  &  B.  192,  per  Sir  W.m.  Gkaxt  ;  ]Martin  v. 
Mitchell,  2  J.  &  W.  413  ;  Flight  v.  Bolland,  4  Russ.  298  ;  Eg-erton  v.  Jilatthews,  6 
East,  307  ;  Allen  v.  Bennett,  3  Taunt.  1G9  ;  Laythoarp  v.  Bryant,  2  Bing.  (N.  C.) 
735 ;  Sweet  v.  Lee,  8  Man.  &  Gr.  4C2  (ed.  note) ;  Sutherland  v.  Brij^j^,  1  Ilare, 
34 ;  Clason  v.  Bailey,  14  Johns.  484  ;  McCrea-y.  Purniort,  IG  Wend.  4()0  ;  Wooilard 
•?).  Aspinwall,  3  Sandf.  272  ;  Shirley  v.  Shirley,  7  Blackf.  452  ;  Rogers  «•  Saunders, 
1(5  Me.  92  ;  Ives  v.  Hazard,  4  R.  I.  14  ;  Anderson  «. Harold,  10  Ohio,  399  ;  Wright 
V.  King.  Harring.  Ch.  12;  [Boyd  v.  Brinckin,  55  Cat  427,  430;  Dnftt).  Hopkins,  33 
Fed.  Rep.  607  ;  Gartrell  v.  Stafford,  12  Nebr.  545  ;  41  Am.  Rep.  767  ;  Idc-y.  Leiser 
(Mont.),  24  Pac.  Rep.  695  ;  Atlcinson  v.  Wliitney,  67  Miss.  655  ;  Docter  r.  Hellberg, 
65  Wis.  415  ;  Cunninghams.  Williams,  43  Mo.  App.  629  ;  Mastinv.  Grimes.  88  Mo. 
478  ;  Dynan  v.  McCoUoch,  46  N.  J .  Eq.  11  ;  Moses  v.  McClain,  82  Ala  370 ;  Hodges 
V.  KoNving,  5S  Conn.  12;  Davis ij.  Robert,  89  Ala.  402;  Mdlerv- Cameron,  45  N. 
J.  Eq.  95  ;  Chambers  V.  Alabama  Iron  Co.,  67  Ahu  353  ;  Carskaddon  v.  Kennedy 
40  N.  J.  Efi.  259  ;  Crcigh  v.  Boggs,  19  W.  Va.  240  :  Peeney  v.  Houghton  (Miss.).  17 
So.  Rep.  378  (April  15, 1895)].  When  the  language  was  '*  the  partjj  to  be  charged," 
Ballard  v.  Walker,  3  Johns.  Cas.  60  ;  Roget  v.  Merritt,  2  Cai.  117  ;  Gale  t>.  Nixon, 
6  Cow.  445  ;  Perkins  i).  Hadsell,  50  111.  217  ;  Estes  v.  Furlong,  59  111.  302  ;  Barstow 
V.  Gray,  3  Greenl.  409 ;  Getchell  V.  Jevvett,  4  Greenl.  350 ;  Morin  v.  Martz,  13 
Minn.  191 ;  Douglass  v.  Speai-s,  2  Nott  &  McC.  207 ;  Palmer  v.  Scott,  1 
Russ.  &  My.  391 ;  Parish  v.   Koons,   1  Pars.  Eq.   Cas.  (Pa.)  79  ;   Sams   v.  Fripp, 

10  Rich.  Eq.  447  ;  Old  Colony  R.  R.  v.  Evans,  6  Gray,  25  ;  Barnard  v.  Le^, 
97  Mass.  92 ;  Young  v.  Paul,  2  Stockt.  Ch.  401 ;  Laning  v.  Cole,  3  Green,  Ch. 
229;  Tripp  u  Bishop,  56  Penn.  St.  42S.  Even  when  the  clause  reads,  "by  the 
jmrties  to  be  charged,"  the  same  rule  has  been  decided  in  New  York,  Fenly 
V.  Stewart,  5  Sandf.  101  ;  Justice  v.  Lang,  42  N.  Y.  493.  In  this  case  the  ques- 
tion was  carefully  examined  and  the  i)rior  authorities  were  exhaustively  reviewed. 
See,  however,  a  subsequent  decision  of  the  same  case,  involving  the  validity  of 
the  contract  on  a  question  outside  the  statute  ;  52  N.  Y.  323  ;  39  Sup.  Ct.  (7  J.  &.  S.) 
283.  Under  the  New  York  statute  of  frauds  in  a  contract  for  sale,  etc.,  of  land 
the  memorandum  is  required  to  be  signed  by  the  ^^c-^'ty  seU'ing,  etc.  Under  this 
jirovision  it  is  held  sufficient  if  the  memorandum  is  signed  by  the  vendor,  and  not 
by  the  vendee  ;  and  it  must  be  signed  by  the  vendor.  Worrall  v.  Munn,  5  N.  Y. 
229  ;  Calkins  v.  Falk,  39  Barb.  620  ;  First  Bapt.  Ch.  of  Ithica  v.  Bigelow,  16  W.-nd. 
28  ;  Bleeker  v.  Franklin,  2  E.  D.  Smith,  93.  If  not  signed  by  tln^  vendoi-,  it  cannot 
be  enforced  against  the  vendee.  McWhorter  v.  McMahan,  10  Paige,  386  ;  Cham- 
pUn  V.  Parish,  11  Paige,  405  ;  De  Beerski  t'.  Paige,  36  N.  Y.  537  ;  47  Barl).  172  ; 
Coles  V.  Bowne,  10  Paige,  526  ;  Vielie  v.  Osgood,  8  Barb.  130  ;  To\vnsend  v.  Hub- 
bard, 4  Hill,  351 ;  Davis  «.  Shields,  26  Wend.  341.     In  the  following  cases  a  signa- 

113 


110  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

the  statutory  provision,  has  some  appearance  of  interfering  with  the 
doctrine  of  mutuality  as  a  feature  of  contracts  outside  the  statute ; 
and  the  rule  itself  lias  been  severely  criticised  and  even  rejected  by 
able  courts  in  this  country,  for  the  reason  that  it  practically  allows  a 
contract  to  be  enforced  by  one  party  who  could  not  in  turn  be  held 
liable  upon  it  at  the  suit  of  his  adversary,  and  thus  destroys  the 
element  of  mutuality,  which  should  belong  to  all  agreements  which 
are  executory  on  both  sides.(l)  It  may,  perhaps,  be  sustained  upon 
the  following  grounds :  The  statute  of  frauds  does  not  reach  the  sub- 
stance of  contracts  and  render  them  invalid  or  valid;  it  simply  furn- 
ishes a  rule  of  evidence.  Whenever,  therefore,  any  agreement  is 
enforced  against  a  defendant  who  has  signed  it  by  a  plaintiff  who  has 
not,  it  cannot  be  said  that  the  agreement,  so  far  as  it  purports  to  bind 
the  plaintiff,  is  a  nullity.  In  a  suit  against  him  the  statute  does  no 
more  than  require  a  certain  kind  of  proof,  in  case  he  avails  himself  of 
it  as  a  defense.  The  defense,  however,  is  wholly  a  personal  one ;  and 
if  he  neglects  to  set  it  up,  the  agi*eement  would  be  established  against 
him  notwithstanding  the  statute.  For  these  reasons,  it  cannot  be  said 
that  a  memorandum  signed  by  one  party  alone  is  so  completely  want- 
ing in  mutuality  that  no  action  upon  it  can  be  sustained. 

Sec.  76.  It  has  been  tacitly  assumed  in  the  foregoing  paragraph 
and  in  the  rules  which  it  states,  that  the  contract  was  mutual  in  its 
language ;  that  it  purported  to  state  the  agreements  of  both  the  parties, 
and  the  only  lack  of  mutuality  which  could  be  alleged  arose  from  the 
fact  that  it  was  signed  by  one  party  only,  so  that  an  action  could  not 
be  maintained  upon  it  against  the  other  non-signing  party.  The 
cases,  however,  have  gone  much  farther  than  this.  It  is  settled  by 
the  preponderance  of  authority,  although  there  are  some  American 

ture  by  the  defendant  in  the  suit,  genei-ally  the  vendor  was  held  sufficient. 
Ewins  V.  Gordon,  49  N.  H.  444  (a  bond  to  convey)  ;  Smith  &  Fleek's  Appeal,  69 
Pa.  St,  474  ;  Vassault  v.  Edwards,  43  Cal.  45S ;  Rutenberg-  v.  Main,  47  Cal.  213. 
In  Mclntire  V.  Bowden,  61  Me.  153,  specific  performance  of  a  contract  was  refused, 
which  was  not  sig-ned  by  all  the  persons  named  therein  as  parties.  In  Slater  v. 
Smith,  117  Mass.  96,  a  written  contract  was  signed  by  S.  and  P.  wherein  S.  agreed 
to  convey  certain  land  to  P.  A  suit  for  a  specitic  performance  by  P.  and  his  wife 
was  sustained,  although  she  was  not  a  iiarty  to  the  writing. 

(1)  See  Boys  v.  Ayerst,  6  Mad.  323,  per  Sir  John  Leach  ;  Lawrenson  v.  Butler,  1 
Sch.  &  Lef.  13,  per  Lord  Redesdalb  ;  Davis  v.  Shields,  26  "Wend.  362,  per  Ver- 
PLANK,  Senator ;  Justice  v.  Lang,  2  Robt.  333  ;  Marcus  v.  Barnard,  4  Robt.  219 ; 
Johnson  v.  Mulry,  4  Robt.  401  ;  Lester  v.  Jewett,  12  Barb.  502  ;  Boucher  v.  Van 
Buskirk,  2  A.  K.  Marsh.  345  ;  Jones  v.  Noble,  3  Bush.  694  ;  Geiger  v.  Green,  4 
Gill.  476  ;  Duval  v.  Meyers,  2  Md.  Ch.  401. 
114 


MEMORANDUM   REQUIRED   BY  STATUTE.  Ill 

-aecisions  which  do  not  accept  the  doctnne,(l )  that  where  one  person 
makes  a  written  offer  to  sell  or  to  purchase  land  signed  by  hiniseH" 
alone,  a  verbal  acceptance  of  this  otier  by  the  other  person  to  whom  It 
was  addressed,  will  constitute  a  concluded  contract  binding  upon  the 
party  who  made  and  signed  the  written  offer,  and  specifically  enforce- 
able against  him,  provided  the  writing  is  comi)lete  in  itself,  and  no 
term  of  the  contract  must  be  su];)pliod  from  the  parol  acceptance.  It 
should  be  observed,  however,  that  in  New  York  and  the  other  states 
where  the  statute  of  frauds  requin^s  the  memorandum  of  a  sale  of  land 
to  be  signed  by  the  vendor,  this  doctrine  would  necessarily  be  con- 
fined to  written  offers  of  sale,  and  could  not  be  extended  to  oilers  of 
purchase  signed  by  the  intended  vendee  alone.(2)    The  doctrine  that 

(1)  See  Lanz  v.  McLaug-hlin,  14  Minn.  72. 

(2)  Warner  v.  Williugton,  3  Drewi-y,  523;  Smith  v  Nealc,  2  C.  B.  (N.  S  )  G7; 
RenssTJ.  Picksley,  L  R.  1  Exch.  342  ;  Sanborn  t»  .  Flagler,  9  Allen,  474  ;  Old  Colony 
R.  R.  V.  Evans,  6  Gray,  25 ;  Esmay  v.  Gorton,  18  111.  483  ;  Farwell  v  •  Lowthcr, 
IS  111.  252;  [Gradle  v.  Warner  (111.),  29  N.  E.  1118;  Pettibone  v.  Moore,  75 
Hun,  461].  In  Warner  v.  Willington,  the  court  said;  "The  other  ground  of 
demurrer  is  this,  that  the  memorandum  was  not  a  memorandum  of  agreement,  l)ut 
only  an  otfer  or  jiroposal  which  the  defendant  retracted  before  it  was  accepted  by 
the  plaintiff.  Now,  thei-e  is  a  clear  di.stiuction  between  a  memorandum  of  offer 
and  a  memorandum  of  agreement.  In  the  case  of  an  offer,  no  doubt  the  party 
signing  it  may  at  any  time  before  acceptance  retract ;  but  if  it  be  an  agreement, 
though  signed  by  one  party  alone,  he  cannot  retract  at  his  pleasure,  but  all  he 
can  do  is  to  call  upon  the  other  party  to  sign  or  rescind  the  agi-eement.  A  memo- 
randum of  agreement  supposes  that  the  two  parties  have  verbally  made  an  actual 
contract  with  each  other ;  and  when  the  terms  of  such  contract  are  reduced  into 
writing  and  signed,  that  is  sufficient  to  bind  the  party  signing  ;  but  if  the  memo- 
randum is  of  an  offer  only,  that  assumes  that  there  has  been  no  actual  contract 
between  the  parties.  Taking  this  as  a  memorandum,  not  of  an  agreement  but 
of  an  offer,  not  then  finally  accepted,  the  question  is  whether  there  has  been  a 
sufficient  acceptance  by  the  plaintiff  before  the  defendant  retracted.  What  is 
alleged  by  the  plaintiff  as  an  acceptance,  was  his  sending  the  draft  lease.  This 
raises  another  questjon  :  Can  acceptance  be  by  parol  without  writing  1  And  it 
is  singular  that  I  cannot  find  any  case  in  which  it  is  determined  that  a  parol 
acceptance  of  a  written  jiroposal  is  sufficient.  But  I  think  upon  jirinciple  that  a 
parol  acceptance  would  be  sufficient,  because  when  one  pai-ty  has  signed  a  wi-ittcn 
proposal,  and  the  other  expressly  acicepts  it  by  parol — as  if  he  says,  in  expres.s 
terms,  *  I  accept  the  proposal ' — that  reduces  it  to  a  case  of  jiarol  agreement  come 
to  between  the  parties,  and  a  memorandum  of  the  agreement  signed  by  one,  in 
which  case  it  is  clear  that  the  signature  of  one  party  is  sufficient  to  bind  him. 
although  the  other  has  not  signed."  This  i-easoning,  it  will  be  seen,  reduces  the 
whole  matter  to  a  mere  question  as  to  the  tinie  of  concluding  the  actual  contract, 
of  which  the  memorandum  is  the  evidence.  Ordinarily  the  parties  m-ke  their 
parol  agreement  first,  and  then  draw  up  a  memorandum  of  it,  which  is  sufficient 
if  signed  l)y  the  party  against  whom  it  is  sought  to  be  enforced.  Hei-e,  however, 
the  memorandum  is  drawn  up  and  signed  by  one  of  the  parties,  in  the  fii-st  in- 
£itance,  and  the  parol  agreement  is  afterwards  made  with  reference  to  it.    The  case 

115 


112  SPECIFIC   FEKF0R3IASCE    OF   CONTRACTS. 

the  signature  of  the  defendant  is  sufficient  to  constitute  a  valid 
memorandum,  has  not  been  accepted  without  some  judicial  protest. 
Even  in  states  where  the  rule  i :  now  settled,  there  has  been  a  strong- 
opposition  to  it  from  eminent  judges;  in  some  states  the  decisions 
have  been  vaccillating ;  while  in  a  few,  the  doctrine  seems  to  have 
been  entirely  rejected.(l) 

of  Sanborn  v.  Flagler,  9  Allen,  474,  arose  undei-  the  clause  of  the  statute  concern- 
ing a  sale  of  goods,  but  the  same  principle  must  apply  to  the  clause  concerning  the 
sale  of  land  in  its  original  and  ordinary  foi-m.  The  memorandum  signed  by  defend- 
ant was  an  offer  as  follows  :  "  Will  deliver  to  S.  R.  &  Co.  l>est  i-efined  iron,  50  tons, 
within  90  days,  at  5  cents  per  lb.  ;  ijlates  to  be  10  to  16  inches  wide,  and  9  to  11 
feet  long.  This  ofl'er  good  imtil  2  o'clock,  Sept.  11,  1862."  Plaintiffs  vei-bally 
accepted  the  defendant's  ofifer  before  the  time  named  for  its  expiration^  and  sue 
on  the  contract  for  a  non-delivei'y  of  the  iron.  The  defense  set  up  was  that  there 
had  been  no  acceptance  in  writing,  and  that,  thei-efore,  no  contract  had  been  con- 
cluded. The  defense  was  overruled.  The  court  says,  per  Bigelow,  C.  J.  :  "  The 
note  or  memorandum  on  which  the  plaintiffs  rely  to  maintain  their  a.ction,  contains 
all  the  requisites  essential  to  constitute  a  binding  contract  within  the  statute  of 
frauds.  It  is  not  denied  by  the  defendant  that  a  verbal  acceptance  of  a  written 
offer  to  sell  merchandise  is  sufficient  to  constitute  a  complete  and  obligatory 
agreement  on  which  to  charge  the  person  by  whom  it  is  sig-ned.  In  such  a  case, 
if  the  memorandum  is  otherwise  sufficient,  when  it  is  assented  to  by  him  to  whom 
the  proposal  has  been  made  the  contract  is  consummated  by  the  meeting  of  the 
minds  of  the  two  parties,  and  the  evidence  necessary  to  render  it  valid  and  capable 
of  enforcement,  is  supplied  by  the  signature  of  the  party  sought  to  be  charged  to 
the  offer  to  sell.  Indeed,  the  rule  being  well  settled  that  the  signature  of  the 
defendant  only  is  necessary  to  make  a  binding  contract  within  the  provisions  of 
the  statute,  it  necessarily  follows  that  an  offer  to  sell,  and  an  express  agreement 
to  sell,  stand  on  the  same  footing  ;  inasmuch  as  the  latter,  until  it  is  accejited  by 
the  other  party,  is  in  effect  nothing  more  than  a  proposition  to  sell  on  the  terms 
indicated.  The  acceptance  of  the  contract  by  the  party  seeking  to  enforce  it,  may 
always  be  proved  by  evidence  alitmde."  In  Old  Colony  R,.  R.  v.  Evans,  6  Gray, 
25,  the  same  doctrine  was  applied  to  a  contract  for  the  purchase  of  land.  The 
defendant  offered  that  if  the  company  would  do  certain  specified  acts,  then  he 
would  purchase  ft-om  it  a  farm  called  the  "Mt.  Hope  farm."  The  company 
verbally  accepted  his  offer,  and  did  the  acts  which  it  required.  On  his  refusal  to 
complete  the  purchase,  the  company  sued  him  on  the  agreement  to  compel  pay- 
ment of  the  price  and  acceptance  of  the  deed.  The  court  held  that  the  plaintiff's 
acceptance  of  the  offer,  although  verbal,  and  its  pei'formance  of  the  conditions 
specified  in  it,  constituted  a  contract  binding  on  the  defendant,  which  would  be 
enfoi-ced,  although  he  could  not  have  the  same  remedy  against  the  company. 
See,  also,  Fishmongers'  Co.  v.  Robertson,  5  M.  &  G.  131. 

(1)  Among  the  cases  in  which  the  doctrine  has  been  questioned  or  disapproved 
by  individual  judges,  are  Boys  v.  Ayerst,  6  Mad.  323,  per  Sir  John  Leach  ;  Law- 
renson  ■?).  Butler,  1  Sch.  &  Lef.  13,  per  Loi-d  Redesdale  ;  Benedict  v.  Lynch,  1 
Johns.  Ch.  370,  and  Clason  v.  Bailey,  14  Johns.  484,  490,  per  Chan.  Kent  ;  Davis 
V.  Shields,  26  "Wend.  362,  per  Verplank,  Senator.  In  Pennsylvania  the  decisions 
have  been  conflicting;  Lowry  v.  Mehaffy,  10  Watts,  887,  approved  the  rule  as 
stated  in  the  text ;  but  in  Wilson  v.  Clark,  1  W.  &  S.  554,  C.  J.  Gibson  vigorously 
116 


MEMORANDUM  REQUIRED   Jl  V  STATUTE.  113 

How  to  be  made  by  an  agent. 

Sec.  77.  The  statute  provides  tliat  tlio  meiuoraiuliim  sliall  bo  si-^uefl 
bv  the  party  himself,  or  by  "some  other  i)ersoii  thereunto  by  liim  law- 
fully authorized."  Whenever  reliance  is  placed  upon  the  latter  clause, 
the  autliority  of  the  person  wlio  lias  assumed  to  act  as  ayent,  not 
merely  to  enter  into  a  n.egotiation,  or  to  receive  i)roposals,  but  to  exe- 
cute a  completed  and  binding  contract  for  his  principal,  must  be 
established  as  in  ;  uy  other  case  of  agency. (1)     The  doctrine  relative 

attacked  it,  and  his  opinion  was  followed  by  Kixa,  J.,  in  Parrish  v.  Koons,  1  Pai-s 
Eq.  Cas.  79,  81.  At  a  latei*  day,  the  doctrine  was  again  approved  by  the  Supreme 
Coui't  in  McFaj'son's  Appeal,  1  Jones,  503,  and  Simpson  v.  Breckenritlge,  8  Casey, 
287,  and  was  tinally  estabUshed,  after  a  thoroug-h  discussion  and  review  of  the 
cases,  in  Tripp  v.  Bishop,  6  P.  F.  Smith,  424. 

(1)  Blore  V.  Sutton,  3  Mer.  237  ;  Frith  v.  Gi-eenwood,  1  Jur.  (N.  S.)  80(5 ;  Howard 
V.  Braithwaite,  1  V.  &  B.  202 ;  Ridgway  v.  Wharton,  3  DeG.  M.  &  G.  G77 ;  6  H. 
L.  Cas.  238.  In  this  case  the  evidence  of  authority  was  discussed  in  the  House 
of  Lords  in  an  exhaustive  and  very  instructive  manner  by  Ld.  Chan.  Cranwokth, 
pp.  259-263,  Lord  St.  Leonards,  pp.  274-284,  and  Lord  We2«'slkydalk,  pj).  290- 
304.  From  Lord  Wensleydale's  judgment  I  take  the  following  extracts  (p.  29(j) : 
"  Now  this  proposition  is  to  be  distinctly  made  out  by  the  phiintilf.  He  must 
satisfy  the  court,  not  so  as  not  to  admit  of  a  reasonable  doubt,  but  upon  the  bal- 
ance of  the  evidence  that  Ci-awter  (the  alleged  agent)  was  the  defendant's  agent. 
He  must  prove  that  as  a  matter  of  fact,  and  if  he  leaves  that  question  at  the  end 
of  the  case,  in  even  scales,  the  plaintiff  cannot  prevail."  *  *  *  (p,  29G.) 
"  Wherever  a  man  pui-ports  to  make  a  contract  with  the  agent  of  another,  in  order 
to  bind  that  other,  the  agent  must  have  authority  from  him.  It  matters  not 
whether  it  is  authority  previous  or  subsequent.  If  a  man,  professing  to  a(;t  for 
another,  makes  a  contract  for  him,  and  authority  is  afterwai'ds  gi\-en  by  that 
other,  the  authority  given  subsequently  is  equal  to  authority  given  before,  accord- 
ing to  the  old  maxim,  omnis  ratlhabitio  rctrotra/iUiu-  et  nuimlato  aeqiiipaj-atur. 
If  a  contract  is  made  by  an  agent,  whether  by  authority  befoie  given,  or  after- 
wards by  ratifying  the  contract,  it  equally  binds  the  principal."  *  *  * 
(p.  297.)  "Then  there  is  a  third  mode  by  which  the  defendant  may  be  boimd. 
Though  he  has  given  no  authority  to  Mr.  C,  he  may  have  r(!presented  to  the 
party  with  whom  the  contract  has  been  made,  that  he  has  given  such  authority  ; 
and  if  he  has  done  so,  or  has  done  what  is  equivalent  to  ti-eating  the  person  who 
has  made  the  contract  as  his  agent,  he  cannot  afterwards  recede  fi'om  the  contract, 
but  he  is  bound  by  it,  and  is  estopped  by  that  i-epresentation."  Chinnock  v. 
Marchioness  of  Ely,  4  DeG.  J.  &  S.  038,  illustrates  a  rosti-icted  authority.  The 
Marchioness  determined  to  sell  certain  property  subject  to  several  special  con- 
ditions and  stipulations,  and  insti-ucted  her  solicitors,  L.  &  M.,  to  sell  it  foi"  10,000/, 
in  that  manner  only.  The  solicitors  thereupon  sent  the  following  to  one  Smith,  a 
house  agent :  "We  have  received  insti-uctions  from  the  M.  of  Ely  to  enq)loy  you 
in  selling  her  house  by  private  contract,"  etc.,  stating  the  price,  the  time  of  giving 
possession.  On  the  day  when  this  letter  was  delivered,  one  of  the  solicitoi-s  called 
on  Smith  and  informed  him,  "that  he  (Smith)  was  not  to  enter  into  any  contract 
for  the  sale  of  the  house,  since  it  was  to  be  sold  subject  to  certain  conditions,  being 
the  same  under  which  the  owner  had  purchiuscid."  HcUl,  by  Ld.  Chan.  Wksthcky, 
(p.  641) :  "  Thiit  Smith  had  no  ai^thority  to  make  any  linal  agreement.     His  office 

117 


114  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

to  the  nature  and  extent  of  authority,  whether  general  or  special, 
express  or  implied,  are  as  constantly  appealed  to  in  administering 
the  equitable  remedy  of  specific  performance  as  in  granting  the 
legal  remedy  of  damages;  but  this  discussion  \.i  not  within  the 
limits  nor  the  design  of  the  present  work.  I  merely  add,  that 
where  the  delegation  of  authority  is  express  and  special,  and  the 
other  party  dealing  with  the  agent  cannot  fall  back  upon  any  larger 
implied  powers,  the  limitations  may  relate  to  the  manner  and  form  of 
executing  the  contract,  as  well  as  to  the  substantial  terms  which  it 
shall  contain;  and  in  such  a  case  the  agent  must  keep  within  the 
restricted  authority  conferred  upon  him  and  strictly  pursue  the 
method  prescribed  by  his  instructions. (1) 

Hovr  authority  may  be  conferred. 

Sec.  78.  Authority  may,  of  course,  be  given  by  express  prior  dele- 
gation. It  may,  also,  be  implied  from  the  acts,  conduct  and  relations 
of  the  parties,  and  from  the  nature,  course,  and  usages  of  the  agent's 
own  business,  or  from  the  manner  and  extent  in  which  he  has  been 
held  out  to  the  world  as  possessing  authority  from  the  principal  over 
matters  of  the  same  general  character. (2)  Also,  though  the  principal 
has  actually  given  no  authority,  he  may  have  represented  to  the  party 
with  whom  the   contract  has  been  made,   that  he  has   given   such 

was  to  exhibit  the  terms  on  which  the  defendant  proposed  to  sell,  to  receive  any 
offers  or  proposals,  and  to  transmit  them  to  the  solicitor  and  ag-ent  of  the  defend- 
ant." Held,  therefoi-e,  that  thei-e  conld  be  no  contract  concluded  by  a  purchaser 
with  Smith.  In  Hamcr  v.  Sharp,  L.  R.  19  Eq.  108,  an  owner  gave  a  real  esJate 
agent  a  written  i-equest  to  find  a  purchaser  of  a  jiroperty  at  a  certain  price,  and  to 
advertise.  Held,  such  agent  had  no  authority  to  enter  into  an  "open"  contract 
for  sale  —  i.  e.,  an  absolute  contract  to  sell  for  a  specified  price  without  any  con- 
ditions or  stipulations  as  to  the,  etc.,  and  semhle,  no  authority  to  enter  into  any 
contract  for  sale  ;  [Ryan  xi  Sing,  7  Ont.  R.  2G6].  See,  also,  as  to  the  establishing 
the  agent's  authority,  Roby  %i  Cossitt,  78  111.  638,  in  a  suit  to  enforce  contract  of 
vendor,  made  by  his  agent,  the  authority  of  such  agent  must  be  alleged  or  shown 
by  some  averment ;  Taylor  v.  Merrill,  55  111.  52  ;  Fitch  v.  Boyd,  55  111.  307  (same 
point) ;  Beckett  v.  White,  20  Ohio  St.  405 ;  Bissell  v.  Terry,  69  111.  184  ;  [Keim  v. 
Lindlcy  (N.  J.  Eq.),  30  Atl.  Rep.  1063  (Jan.  10,  '95) ;  Hadfield  v.  Skelton,  69  Wis. 
460,  and  cases  cited.  ] 

(1)  Frazer  v.  McPherson,  3  Dessau.  393 ;  Mackay  v.  Moore,  Dudley,  94.  If  an 
agent  contracts  to  sell  property  in  a  manner  different  from  that  authorized,  the 
conti-act  will  not  1)0  enforced  —  e.  g.,  agent  authorized  to  sell  at  auction  sold  at 
private  sale,  although  for  a  higher  price  than  the  limit,  Daniel  v.  Adams,  Amb.. 
495  ;  and  see  Helsham  v.  Langlev,  1  Y.  &  C.  C.  C.  175 ;  White  v.  Cudden,  8  CI. 
&  Fin.  760  ;  Manser  v.  Back,  0  Har.  443 ;  Sneesby  v.  Thoi-ne,  7  De  G.  M.  &  G. 
399.  [Cf.  Rook  V.  Girneson,  67  Iowa,  202;  Johnson  v.  Furnish,  29  Kan.  523 ;  Hol- 
brook  V.  McCarthy,  61  Cal.  216  ;  Hampton  v.  Moorhead,  (')2  Iowa,  91 ;  Wei.se's 
Appeal,  72  Pa.  St.  351 ;  Thomas  v.  Joslyn,  30  Minn.  388 ;  Taylor  v.  Agricultural 
Asgn.  68  Ala.  229.] 

(2)  Sharp  ■».  Milligan,  22  Beav.  606.  If  a  person  employs  a  real  estate  agent  to 
.sell  his  "house,  and  gives  no  special  instructions,  the  extent  of  the  agent's  authority 
and  his  power  to  make  a  contract  of  sale  might  be  implied  from  his  customary 
methods  of  transacting  business  as  generally  known  to  the  iiublic. 

118 


MRyrORANnUM   required    JiV  STATUTE.  115 

authority;  aiul  if  h»>  has  done  so,  or  has  done  what  is  equivalent  to 
treating  tlie  })ersoii  who  has  made  the  contract  as  his  agent,  he  can- 
not afterwards  recede  from  the  contract,  but  lie  is  bound  by  it,  and  is 
estopped  by  that  representation. (1) 

yEC.  79.  The  mode  of  conferring  authority  is  not  prescribed  by  the 
statute  of  frauds,  and  nuist,  therefore,  d*epend  upon  the  general  doc- 
trines of  agency,  except  when  regulated  by  other  statutes.  If  a  con- 
veyance or  any  other  act  is  required  by  law  to  be  by  deed,  the 
authority  of  the  agent  to  execute  it  must  be  conferred  by  deed.  Con- 
tracts, however,  relating  to  real  estate,  as  for  sale,  letting,  and  the 
like,  need  not  be  under  seal,  and  the  rule  is  settled  that  the  authority 
of  an  agent  to  enter  into  such  agreements  may  be  given  by  parol, 
and  may,  therefore,  be  implied  from  acts  and  circumstances  ;(2)  unless, 

(1)  Per  Lord  Wenslbtdalb,  in  Ridg-way  v.  Wharton,  6  H.  L.  Cas.  238,  297. 

(2)  Waller  v.  Hendon,  5  Vin.  Abr.  524,  pi.  45  ;  Coles  v.  Trecotheck,  9  Ves.  234, 
250  ;  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22 ;  Dyas  v.  Cruise,  2  Jon.  &  Lat.  460  ;  Mort- 
lock  v.  BuUer,  10  Ves.  311 ;  Yerby  t).  Grigsby,  9  Leig-h,  387  ;  Irvine  v.  Tlioinp- 
son,  4  Bibb.  295  ;  Shaw  v.  Nudd,  8  Pick.  9  ;  TurnbuU  v.  Trout,  1  Hall,  33G ;  Mor- 
timer V.  Cornwell,  1  Hoff.  Ch.  351 ;  Johnson  v.  Dodg-e,  17  111.  433;  Lawrence  t\ 
Taylor,  5  Hill,  107  ;  More  v.  Smedburgh,  8  Paige,  GOO  (contract  for  sale  of  land 
by  a  firm  signed  by  one  partner  for  himself  and  copartner,  whether  good  or 
not,  qu.)  ;  McWhorter  7j.  McMahan,  10  Paige.  386,  per  Walworth,  Ch.  :  "It  is 
only  necessary  that  such  agent  be  lawfully  authorized  to  execute  the  contract ; 
an  authority  in  writing  for  that  jiurpose  is  not  required  by  the  statute  of  frauds. 
An  authority  to  comiey  lands  is  required  by  the  statute  to  be  in  writing,  but 
clearly  not  an  authority  to  contract  to  convey.  The  whole  subject  was  thoroughly 
discussed  in  Warrall  t).  Dunn,  5  N.  Y.  (1  Seld.)  229,  which  Jicld,  that  when  an 
agent,  authorized  by  parol  to  make  a  contract,  executes  an  agi-eenient  under  seal, 
it  is  binding  on  the  principal  as  a  simple  contract ;  that  a  contract  for  the  sale 
of  land  need  not  be  sealed,  but  merely  in  writing,  and  that  the  agent's  authority 
to  execute  it  may  be  conferred  by  parol."  Per  Paigb,  J.  (p.  239):  "It  is  a 
maxim  of  the  common  law  that  an  authority  to  execute  a  deed  or  instrument 
under  seal,  must  be  conferred  by  an  instrument  of  equal  dignity  and  solemnity — 
that  is,  by  one  under  seal.  This  i-ide  is  purely  technical.  A  disposition  h;is  been 
manifested  by  most  of  the  American  courts  to  relax  its  strictness,  especially  in  its 
apjilication  to  jiartnership  and  commercial  transactions.  I  think  the  <loctrine  as 
it  now  exists  may  be  stated  as  follows,  viz  :  If  a  conveyance  or  any  act  is  required 
to  be  by  deed  the  authority  of  the  attorney  or  agent  to  execute  it  must  be  con- 
ferred by  deed  ;  but  if  the  instrument  or  act  woidd  be  effectual  without  a  seal, 
the  addition  of  a  seal  will  not  render  ar.  authority  under  seal  necessary  ;  and  if 
executed  under  a  parol  authority  or  subsequently  ratified  or  adopted  by  parol, 
the  instrument  or  act  will  be  valid  and  binding  on  the  principal.  It  is  said  that 
the  rule,  as  thus  relaxed,  is  confined  in  its  apjilication  to  transactions  between 
partners.  But  it  seems  to  me  that  a  distinction  between  partners  and  other  jier- 
sons  in  the  aj)plicati(in  of  the  rule,  as  i-elaxed  and  qualified  by  recent  decisions, 
stands  upon  no  solid  foundation  of  reason  or  ])rinciple."  Heard  v.  Pilley,  L.  R. 
4  Ch.  548.     Bill  by  a  vendee  for  the  specific  performance  alleged  that  the  con- 

119 


118  SPECIFIC  PERFOKMANCK    OF  COA'TRACTS. 

as  is  the  case  in  certain  states,  the  authority  to  make  sucli  contracts 
is  required  by  statute  to  be  in  writing.  In  England  there  is  an 
exceiition  in  reference  to  corporations.  The  common-law  doctrine 
that  corporations  can  only  contract  by  means  of  their  seal  is  not 
entirely  abandoned,  and  the  power  of  such  bodies  and  of  joint-stock 
companies  is  limited,  and  their  mode  of  action  is  prescribed  by  stat- 
utes.(l)  No  such  exception  exists  in  the  United  States,  and  the  agents 
of  corporations  may  here  be  appointed  by  parol,  and  their  authority 
may  be  implied  to  the  same  extent  as  the  agents  of  private  persons.(2) 
The  authority  of  an  agent  to  enter  into  a  contract  which  shall  be 
binding  under  the  statute  of  frauds,  may  also  be  conferred  by  ratifi- 
cation whether  the  principal  be  a  private  individual  or  a  corporation. 
Ratification,  w'hich,  of  coiu'se,  assumes  that  an  authority  did  not 
exist  at  the  time  of  doing  the  act  iu  question,  relates  back  and  sup- 
plies the  place  of  a  prior  mandate — mandato  aequiparatur.(S) 

tract  was  made  by  A.,  one  of  the  defendants,  as  agent  for  the  plaintiff,  but  that 
the  agent  claimed  the  benefit  of  the  contract  himself.  It  appeared  by  the  alle- 
gations of  the  bill  that  the  agent  was  appointod  by  parol.  Both  defendants.  A., 
the  agent,  and  B.,  the  vendor,  demuri-ed.  Their  demur  was  overruled  ;  the 
court  holding,  among  other  things,  that  a  contract  for  the  purchase  of  land  made 
by  an  agent  of  the  vendee,  who  was  only  appointed  by  parol,  may  be  specifically 
enforced.  See,  also,  Fisher  v.  Bowser,  41  Tex.  222  ;  Rutenburg  t).  Mein,  47 
Cal.  213  ;  [Conaway  v.  Sweeney,  23  W.  Va.  643  ;  Campbell  v.  Fetterman,  2!)  W. 
Va.  398 ;  Roehl  v.  Hanmesser,  114  Ind.  311 ;  Linn  v.  McLean,  SO  Ahx.  300]. 

(1)  As  to  agents  of  joint-stock  companies,  see  19  and  20  Yict.  Ch.  47,  §  41  ;  also 
8  and  9  Vict.  Ch.  10. 

(2)  Angel  &  Ames  on  Corp.  §§  282,  283,  284. 

(3)  Ridgway  v.  Wharton,  6  Ho.  L.  Cas.  238,  29G,  per  Lord  Wbxsleydale  ; 
Maclean  v.  Dunn,  4  Bing.  722 ;  Bigg  v.  Strong,  W.  R.  (18.57-8)  173  ;  Clark  v. 
Riemsdyck,  9  Cranch,  153  ;  Barbour  v.  Craig,  6  Litt.  213 ;  Benedict  v.  Smith, 
10  Paige,  126;  [Keim  v.  Lindley  (N.  ,L  E;i.),  30  Atl.  Rep.  1063  (Jan.  10,  '9.')).] 
Wilson  i\  West  Hartlepool  Ry.  Co.  2  De  (t.  .1.  &  S .  47.'),  is  an  instructive 
case.  A  subordinate  officer  (traffic  managei-)  of  a  railway  company,  without 
any  direct  authority,  agreed  to  sell  to  plaintiff  a  piece  of  land  of  the  company, 
at  a  certain  price  per  acre.  One  of  the  provisions  of  the  contract  was  that  the 
company  should  lay  down  a  branch  track  to  the  land.  The  company's  surveyor 
measured  the  land,  its  engineer  laid  down  the  branch  track,  the  i)laintiff  was  let 
into  possession,  and  his  machinery  was  brought  to  the  land  on  the  company's 
wagon.  Afterwards  the  company  refused  to  complete.  Held,  by  the  M.  R.  and 
the  L.  L.  J.,  that  the  conti-act  had  been  i-atified  by  the  company,  and  was  bind- 
ing, and  a  specific  performance  decreed.  L.  J.  Turner,  after  reaching  the  con- 
clusion that  Chestei",  the  officer  who  made  the  contract,  had  no  prior  authority, 
proceeds  (p.  491) :  "  But  it  was  said,  on  the  part  of  the  plaintiff,  that  the  directors 
ratified  this  contract,  and  I  think  they  must  be  held  to  have  done  so  (recapitulat- 
ing the  facts).  These  acts  were  in  conformity  with  the  contract,  and  they  amount, 
I  think,  to  a  representation  by  the  defendants  to  the  plaintiff  that  the  contract  was 
a  subsisting  and  valid  contract.  *  *  *  The  purchaser  was  so  far  treated  as  a 
purchaser  that  he  could  no  longer  be  treated  as  a  trespa.sser,  as  he  must  have  been, 

120 


ME.UORAynU.U   REQUIRED    liV  STATUTE.  117 

Sec.  80.  "WIkmi  s;iles  aro  in:i(l(>  at  auction  hy  a  public  auctioneer 
duly  authorized,  he  is,  from  the  necesssitios  of  tlit>  case  and  the  nature 
of  the  bvKsiuess,  an  agent  botli  for  the  vendor  who  dirt'ctly  employs 
him,  and  for  the  i)urchaser  whose  bid  is  successful ;  and  an  entry  in 
his  book,  or  account  of  sales,  containing  the  terms  of  the  contract  and 
signed  by  himself,  is  a  memorandum  duly  executed  in  conformity 
with  the  statute  ;(1)  and  this  equally  applies  to  auction  sales  of  real 
and  of  personal  property.(2)  It  seems  that  a  contract  signed  by  an 
auctioneer  on  behalf  of  an  undisclosed  vendor  is  valid  and  binding 
upon  the  principal. (3)     When  a  private  sale,  however,  is  made  at 

if  there  was  no  valid  or  binding  contract."  *  *  *  (Page  493)  :  *'  It  was  said, 
on  the  part  of  the  defendants,  that  the  company  could  not  sell  otherwise  than  by 
an  agent  appointed  under  their  common  seal ;  but  the  <iuestion  here  is  upon  a 
sale  by  the  directors,  and  it  was  not  disputeti  that  they  had  authority  to  sell." 
(Page  495) :  "There  remains,  then,  the  question  whether  this  contract  ought  to 
be  held  binding  on  the  company,  having  regard  to  the  statutory  pi-ovisions  as  to 
contracts  by  companies.  In  this  point  of  view  it  is  material,  in  the  first  place,  to 
consider  how  the  question  would  have  stood  before  the  passing  of  these  statutory 
provistons.  It  is  not  disputed  that  the  directors  had  power,  on  behalf  of  the 
company,  to  sell  the  land  in  question  ;  and,  having  the  ix)wer,  it  must,  as  it  seems 
to  me,  have  been  competent  to  them  to  ratify  a  contract  made  by  the  manager 
of  the  company  for  the  sale  of  it.  They  in  fact  ratified  this  contract.  It  became 
in  effect  their  contract.  I  see  no  ground  on  which,  before  the  passing  the  statu- 
tory provisions,  the  court  could  have  refused  specific  performance  of  the  contract, 
much  less  do  I  think  a  specific  performance  could  have  been  j-efused  when  the 
ratification  had  been  followed  by  possession  being  given  inider  the  conh-act.  The 
question,  then,  is  reduced  to  this,  whether  the  statutory  provisions  have  altered 
this  state  of  the  case.  The  provisions  are  contained  in  8  and  9  Vict.,  Ch.  16,  §  97. 
The  legislature  has,  in  this  section,  pointed  out  modes  in  which  the  powers  of 
directors  to  contract  may  lawfully  be  exercised,  and  has  enacted  that  all  con- 
tracts made  according  to  these  provisions  shall  be  binding  and  effectual ;  but  it 
has  not  said  that  contracts  made  in  other  modes  shall  not  be  binding  and  effectual, 
where  there  is  power  so  to  make  them  ;  and  certainly  it  has  not  said  that  any 
equity  which  may  have  existed  in  this  court  before  these  iirovisions  were  intro- 
duced, shall  no  longer  exist.  The  act  is  affirmative,  and  affirinative  acts  are  not 
generally  to  be  construe<l  so  as  to  take  away  pre-existing  rights  or  remedies," 
This  latter  part  of  the  opinion  and  what  follows  projierly  belongs  to  the  doctrine 
of  ultra  vires.  See,  also,  on  the  doctrine  of  ratification  and  ac(iniesccnce  by  a 
corpoiation.  Crook ij.  Coi-poration  of  Seaford,  L.  R.  6  Ch.  551 ;  ib.,  10  Eq.  678. 

(1)  Kemeys  v.  Proctor.  3  V.  &  B.  57 ;  1  J.  &  W.  350 ;  Buckmaster  v.  Ilarrop, 
7  Ves.  341 ;  13  Ves.  456  ;  Lord  Glengal  v.  Bai-nard,  1  Keen,  788  ;  Gosbell  v.  Archer, 
2  A.  &  E.  500  ;  Kenworthy  v.  Schofield,  2  B.  &  C.  945  ;  Enunerson  v.  Heelis,  2 
Taunt.  38;  White  v.  Proctor.  4  Taunt.  209  ;  Smith  v.  Jones,  7  Leigh,  105;  E[)is- 
copal  Church  of  Macon  v.  Wiley,  2  Hill  Ch.  584;  McComb  ■?».  Wright,  4  John.s. 
Ch.  659  ;  Blocker  v.  Frankhn,  2  l-l  D.  Smith.  93  ;  [St.ammerc  v.  O'Donohoe,  SOnt. 
App.  R.  IGl.] 

(2)  Bailey  ■?).  Leroy,  2  Edw.  Ch.  514  ;  Ander.son  x\  Chiiik,  1  ]5uiley  Ch.  US. 

(3)  Beer  v.  London  and  Paris  Hotel  Co.,  L.  R.  20  Eq.  412,  426,  per  V.  C.  Malins. 
And  in  Walsh  v.  Barton,  24  Ohio  St.  28,  where  land  was  sold  at  auction  the  ^•endor 

121 


118  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

iiuction  rooms,  the  auctioneer  is  not,  by  virtue  of  his  business,  an 
ay-eut  for  tlie  pur('haser.(l)  From  alike  necessity  of  the  business  the 
clerk  of  an  auctioneer  at  the  sale  is  an  agent  of  the  purchaser  to  make 
the  entry  in  the  book  or  account  of  sales,  and  thus  complete  a  memo- 
randum of  the  contract.(2)  The  clerks  of  other  agents  are  not  them- 
selv^es  agents,  for  the  authority  is  personal  and  fiduciary  and  cannot 
be  delegated ;  but  such  clerks  may,  of  course,  be  made  agents  either 
by  express  delegation  of  power  from  the  principals,  or  by  implication 
from  their  conduct. (3)  These  rules  concerning  auctioneers  have  been 
incorported  into  the  statute  of  frauds  of  certain  states.  A  commis- 
sioner, referee,  or  master  appointed  by  the  court  to  make  a  public  judi- 
cial sale,  is,  like  an  auctioneer,  the  agent  for  both  parties,  and  may 
bind  them  by  his  memorandum  of  the  sale. (4)  An  attorney  employed 
in  a  negotiation  concerning  a  proposed  marriage,  who  rduced  into  a 
v^ritten  form  the  verbal  agreement  made  by  the  parties  at  an  inter- 
view, was  held  not  to  be  their  agent,  so  as  to  make  his  insertion  of 
their  names  in  the  memorandum  a  sufficient  signing  to  comply  with 
the  statute. (5) 

E:sternal  form  of  the  memorandum.  Contracts  by  corre- 
spondence. 
Sec.  81.  2.  Where  the  agreement,  as  is  most  frequently  the  case^ 
is  set  forth  in  one  single  memorandum,  signed  or  subscribed  in 
the  ordinary  manner,  no  questions  can  arise  as  to  its  external 
form,  and  nothing,  therefore,  need  be  said  concerning  it.  But 
the  various  parts  of  a  contract  may  be  distributed  through  sev- 
eral different  writings — very  often  letters,  which  if  they  contain 
all  the  essential  terras  and  the  necessary  signatures,  and  are  suffi- 
ciently connected  by  references  from  one  to  the  other,  will,  taken 
together,  constitute  the  memorandum  required  by  the  statute.  Con- 
tracts of  this  form,  contained  in  letters  or  other  seperate  papers,  may 
be  conveniently  arranged  in  three  classes,  all  which,  however,  are 
governed  by  the  same  rules  and  doctrines:  1,  where  all  the  terms  of 

not  being  disclosed,  the  memorandum  made  by  the  auctioneer  who  was  agent  of 
the  vendor,  and  which  was  signed  by  the  auctioneer  and  l)y  the  purchaser,  with- 
out the  name  of  the  vendor  a^jpearing,  was  held  to  be  sufficient  to  satisfy  the 
statute  of  frauds.  Comjjare  with  these  two  cases,  the  case  of  Potter -y  Duffield, 
L.  R.  18  Eq.  4,  the  facts  of  which  are  given  in  note  to  §  88.  The  distinction 
appears  to  be  that  iii  Potter  v.  Duffield,  the  contract  did  not  purport  to  be  made 
by  the  auctioneer  as  a  contracting  party,  but  simply  as  agent  for  an  undiscloseii 
principal  who  was  called  "  the  vendor,"  so  there  was  in  fact  no  party  selling 
appearing  to  be  bound  by  the  contract.  In  the  other  two  cases  the  auctioneer 
was  the  contracting  party  binding  himself,  and  the  contract  was,  therefore,  com- 
plete on  its  face  with  vendor  and  vendee. 

(1)  Mews  V.  Carr,  26  L.  J.  Ex.  39. 

(2)  Bird  v.  Boulter,  4  B.  &  Ad.  443 ;  Smith  v.  Jones,  7  Leigh,  im. 

(3)  Coles  V.  Trecothick,  9  Ves.  234. 

(4)  Jenkins  v.  Hogg,  2  Const.  Rep.  821 ;  Gordon  v.  Sims  2  McCord  Ch.  1!51. 

(5)  Lord  Glengal  v.  Barnard,  1  Keen,  7(5!! ;  De  Biel  v.  Thomp.son,  3  Beav.  469, 

122 


MEMORANDUM  REQUIRED   BY  STATUTE.  119 

the  agreement  are  contained  in  a  writing  wliich  is  unsigned,  and 
letters  or  other  papers  are  used  to  adopt  tliat  writing  and  to  supply 
ihe  signatures;  2,  when  a  part  of  the  terms  only  are  found  in  th(^ 
unsigned  writing,  and  the  letters  adopting  tluMu  supply  the  others  as 
well  as  the  signatures;  8,  where  the  letters  themselves  constitute  the 
contract  without  reference  to  any  other  (|istinct  writing.  There  is  no 
distinction  in  principle  between  these  classes,  which  are  given  simply 
for  a  clearer  ai-rangement  of  the  decided  cases.  The  rules  applicable 
to  the  first  apply  to  both  the  others. 

Sec.  82.  1.  Where  the  terms  of  an  agreement  are  all  stated  in  one 
writing  which  is  unsigned,  and  other  writings,  or  a  writing — such  as 
letters,  or  a  single  letter — contain  the  signatures,  and  so  refer  on  their 
face  to  the  first  paper  as  to  show  an  intention  of  adopting  its  contents, 
the  whole  will  constitute  a  sufficient,  memorandum  aiul  a  binding 
contract.  There  must  be  a  reference,  and  a  reference  to  terms  in 
writing,  for  no  essential  part  of  the  agreement  can  be  supplied  by 
parol  Parol  evidence,  however,  is  admissible  to  ascertain  and 
identify  the  paper  to  which  reference  is  thus  made.(l)  The  object 
of  such  evidence  is  not  to  prove  the  terms  themselves,  and  thus  make 
out  the  substantial  fact  of  the  contract  without  writing,  but  simply 
to  explain  the  reference  by  ascertaining  to  what  it  applies,  and  by 
identifying  the  writing  which  is  thus  referred  to  and  adopted.  With- 
out such  a  reference  in  the  face  of  the  paper  or  letters,  parol  evidence 

(1)  Tawney -w .  Crowther,  3  Browti  C.  C.  318,  per  Ld.  Chan.  Thcrlow.  "And 
first  as  to  the  statute  of  frauds,  it  is  an  easy  question  taken  by  itself.  A  g-ood 
deal  of  ingenious  argument  has  been  made  use  of  to  prove  that  tlu^  Ictti'r  is 
insufficient  to  take  it  out  of  the  statute  of  frauds.  If  the  letter  contains  the  tei-ms 
of  the  agreement,  or  if  it  refers  to  another  ])a per  which  cuntains  the  ternut,  that  is 
sufficient,  for  I  am  of  ojiinion  that  if  a  letter  refers  so  clearly  to  ait  agreettient 
as  to  show  lohat  was  niea/it  hij  the  2Mrties,  when  the  existence  of  the  i)aper  is 
proved  by  parol,  that  will  take  the  case  out  of  the  statute."  Although  the  deci- 
sion of  Lord  Thurlow  in  this  case,  on  the  whole  facts,  has  l)een  ci'itic.i.se<l  by  Lord 
Redesdalb  in  Clinan  v.  Cooke,  1  Sch.  &  Let".  22,  33,  and  by  Lord  Cua.wvouth  in 
Rid£fway  v.  Wharton,  C  H  L.  Cas.  238,  207,  208,  yet  this  iiarticular  doiti-ine,  as 
laid  down  by  hun,  has  never  been  (piestioned  ,  indeiMl  Lord  Ckanwoktu  exincssly 
approves  and  adopts  ii  in  the  last-named  case,  at  p.  200.  In  Ridgway  v.  Wharton, 
G  H.  L.  Cas.  238,  Lord  Ckanwoktu  said  (p.  2.")")  •.  "If  there  is  an  agreement  to  do 
something  not  expressed  on  the  face  of  tin;  agreement  signed,  that  something 
which  is  to  be  done  being  included  in  sonu;  other  writing,  parol  evidence  may  be 
admitted  to  show  what,  that  writing  is,  so  that  tht!  two,  taken  together,  may  consti- 
tute a  binding  agreenwmt  within  the  .statute  of  frauds. "  *  *  *  (p  2rKS  )  "If 
authority  had  been  given  by  defendant  to  C-  (his  agent)  to  agree  to  grant  a  lejise, 
and  if  C.  entered  into  an  agi-eement  to  grant  u  least;  in  the  terms  of  the  written 
instructions  which  he  gave  to  G.,  th(;  (solicitor.  l)arol  evidence  showing  what  tho.'^e 
instructions  were,  and  that  they  were  written  mstriiction.  would  be  sufficient  to 
take  the  case  out  of  the  statute  of  frauds."  All  the  law  lords  concurred  in  this 
doctrine.  [In  Studds  u  "Watson,  28  Ch.  D.  30.'),  it  was  held  that  if  the  writings 
refer  to  the  same  pai-of  agn;ement,  and  when  taken  together  contain  all  the  terms 
of  such  agreement,  they  constitute  a  gnod  memorandum  ,  Studds  v  Watson.  28  Ch. 
D.  305.]  Allen  v.  Bennett,  3  Taunt.  fO'J,  is  a  ieadiuir  case,  allhough  decided  upon 
another  clause  of  the  statute.  A  ti-aveler  fui*  a  London  merchant  made  an  agree- 
ment for  the  sah;  of  gooils  to  a  country  shop-keeper,  and  entered  the  terms  of  the 
sale,  without  signatui'c,  in  tht;  hitter's  books;  tlu;  Lomlon  merchant  afterwards 
wrote  a  letter  to  his  agent  referring  to,  and  recognizing  the  terms  thus  entered, 
and  the  two,  tlie  ciiti'v  and  tlie  lettei-.  wei-e  htdd  to  be  a  memorandum  .sufficiently 

123 


120  sFKciFic  Pl•:R^OR^rA^■<'h:  of  ro.\TiiA(rrs. 

is  inadmissible  to  connect  tlieui  with  anoOier  writiui;-,  and  to  bring  it 
in  as  a  constituent  i)art  of  the  ai,''reenient.(l)     It  lias  been  held  that  a 

feigned  hy  the  seller  to  satisfy  the  statute.  See,  also.  Coles  v.  Ti-ecotliick,  U  ^'e5. 
liyO,  per  Lord  Eldox  ;  Clinan  v.  Coolte,  1  Seh.  Sc  Let".  33 ;  (xawton  v.  Franliuin,  2 
I)e  G.  &  Sm.  r)Gl  ;  Powell  v.  Dillon,  2  Ball  &  13.  41G  ;  Dol)ell  v.  Hutchinson,  8  A.  & 
E.  S.lo  ;  Saundevson  v.  Ja(;kson,  2  I>  &  P.  2^8  ;  Jackson  v.  Lowe,  1  Bing  9  ;  "Wood 
V.  Scarth,  2  K.  &  J.  3:'.;  Western  v.  Russell,  8  V.  &  B.  137;  Pai-khuret  v.  Van 
Cortland,  1  Johns.  Ch.  273 ;  Forster  v.  Hale,  8  Suniu.  GO(j ;  Iilc  v.  Stanton,  15 
Verm.  (JS')  ;  Faj-\veil  v.  Lowthei-,  18  111.  2.)2  ;  Blair  v.  Snodg-i-ass,  1  Snced,  1  ;  Tall  ■ 
man  v.  Franklin,  14  N.  Y.  .584  ;  [Yv'orlhiii^u-ion  Bi-ick  Co.  v.  Bull,  44  Ilun,  4G2  ; 
Roehl  V.  Ilanmesser,  114  Ind.  81 1 ;  Carr  tv  Hays,  110  Ind  408  ;  Camp  t\  Moreman, 
84  Ky,  635  ;  St.  Louis,  etc  ,  R.  R.  i\  BeiJler,  4.'3  Ark.  17  :]  Bauman  v.  James,  L.  R. 
8  Ch'  508  A  tenant  applied  to  the  landlord's  solicitoi"  ibr  a  i-encwal  of  the  lease. 
The  solicitor  sent  him  a  ]-eport  of  a  sui-veyor,  whit^h  recommended  g-ranting  a 
lease  for  foui-teen  years,  at  a  certain  rent,  if  tenant  made  certain  repairs.  Tenant 
wrote  back  assenting  te  the  rent  and  repairs,  but  a.sking  for  twenty-one  years. 
A  negotiation  afterwards  took  place  between  the  tenant  and  the  landlord  per- 
.sonaily.  The  landloi-cl  wrote  a  letter  j)romising  tenant  a  lease  for  fourteen  years 
"  at  the  rent  and  terms  agreed  upon,"  to  whi(  h  the  tenant  replied  by  a  letter 
giving  an  imqualiiied  acceptance.  Held,  that  i)arol  evidence  was  admissible  to 
connect  the  surveyor's  rei)ort  and  the  tenants  iirst  letter  with  the  subsequent  ones, 
and  to  identify  the  "terms  agreed  uj^on."  It  being  conclusively  establi.?hed  that 
no  rent  or  terms  had  been  agreed  uj^on,  other  than  those  mentioned  in  the  report, 
there  was  a  sufficient  memorandvim  imder  the  statute  of  frauds.  This  case  well 
illustrates  the  nature  and  use  of  parol  evidence  to  explain  the  reference  by  show- 
ing what  it  applies  to,  and  by  identifT,-ing  the  writing  which  contains  the  terms  to 
which  the  reference  is  made  and  which  are  thereby  adojited.  [That  the  reference- 
from  one  writing  to  another  need  not  be  express,  Init  may  be  by  a  reasonable- 
inference,  see,  Wylson  v.  Dunn,  84  Ch.  D.  560.  Where  a  signed  memorandum 
of  sale  was  not  jittached  to  the  printed  advertisement  of  sale,  nor  otherwise 
referred  to  it.  parol  evidence  to  connect  them  was  rejected,  in  Mayer  v.  Adrian, 
77  N.  C.  83  ] 

(1)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22.  An  agi-eement  containing  no  reference  to 
a  certain  advertisement  concerning  the  pi-opei-ty,  it  was  held  that  such  advertise- 
ment could  not  be  used  to  supply  a  term.  S.  P.,  in  O'Donnell  v.  Leman,  43  Me 
158 ;  Montucute  v.  Maxwell,  Str.  236  ;  Freeport  v.  Bai-tol,  8  Greenl.  345  ;  Morton 
V.  Dean,  13  Met.  388;  Ide  v.  Stanton,  15  Vt.  600;  Nichols  v.  Johnson,  10  Conn. 
198  ;  Abeel  v  Radcliff,  13  Johns.  300  ;  Moale  v  Buchanan,  11  Gill  &  Johns.  814  ; 
Adams  17.  M::Mlllan,  7  Port.  (Ala.)  73;  Waul  tv  Kirkman,  5  Cush.  (Miss)  823; 
O'Donnell  v  Leman,  43  Me.  158  ;  Blair  v.  Snodgrass,  1  Sneed,  1 ;  AVillcy  v.  Robert, 
27  Mo  808  ;  Boardman  v.  Spooner,  13  Allen,  358 ;  Stocl^er  v.  Partridge,  2  Rob 
Sup.  Ct  103  ;  Tallman  v  Fi-aiddin,  3  Duer,  395  ;  [Shardlow  v.  Cottrell,  20  Ch.  D. 
90 ;  18  Ch.  D.  280  ;  Duff"  v  Hopkins,  38  Fed.  Rep.  607  :  ]N'eil)ert  v.  Baghurst,  47 
N.  J  Eq.  201,  208  ;  Repetti  v.  Maisak,  6  Mackey,  366  ;  Iloihs  v  Burgess,  87  Kan. 
407  ;  Tice  v.  Freeman,  30  Minn.  389  ;  Stammers  V.  O'Donohoe,  8  Ont.  Ap.  R.IOL] 
An  oiTer  by  letter  may  be  proved  by  parol  to  have  been  accepted  by  the  plaintiff 
AVattsv  Ainsworth,  6  L.  T.  (N  S.)'252.  The  paper  referred  to  as  containing  the 
terms  muEt  be  certain  and  definite  enough,  in  order  that  the  contract  may  be 
gatliered  fi-om  it  with  certainty.  Brodie  v.  St.  Paul,  1  Ves.  32G  ;  Boydell  v.  Driim- 
mond,  11  East,  142.  [The  restriction,  mentioned  in  the  text,  on  the  class  of  evidence 
admissible  to  connect  the  documents,  seems  to  be  entirely  abandoned  in  the  late  case 
of  Oiiver  v.  Hunting,  44  Ch.D.  205  ;  at  any  rate,  Kekkwicii,  J.,  goes  so  far  as  to 
say,  "whenevei"  ]>arol  evidence  is  required  to  connect  two  written  documents 
together,  then  that  pai'ol  evidence  is  admissible."  The  facts  in  the  case  wei'e 
the.^e:  //.  agi-eed  to  sell  to  0.  a  freehold  estate  for  £2,375,  and  signed  a  memo- 
randum which  contained  all  the  essentials  of  the  contract,  except  that  it  omitted 
to  mention  or  refer  to  the  jn-operty  agreed  to  be  sold.  Two  days  afterwai-ds,  0. 
pursuant  to  the  contract,  sent  H.  a  check  of  £375,  as  a  deposit  and  in  jiart  pay- 
ment of  the  £2,875,  and  i7.  replied  by  letter,  "I  beg  to  acknowledge  receipt  of 
check,  value  £375,  on  account  of  the  pui-chase  money  for  the  F.  estate."  It  was 
held  that,  though  th(!  lettei-  did  not  exphcitly  i-efer  to  the  previous  memorandum, 
or  to  any  memorandum,  the  court  was  entitled  to  consid<n-  all  the  circumstances 
under  which  the  lettei-  was  written,  and  therefore,  by  the  help  of  parol  evidence 
connecting  the  two,  to  i-ead  the  documents  together  as  a  distinct  memorandum 
■of  contract.] 

124 


MKMOUAyofM  i:i:<^niiiKi>  nv  sta'iutk.  12f 

mere  written  adiuirisiou  of  an  ai;reeineiit,  witlioiit  statin^'",  or  in  any 
way  ascertaiiiiui;-  ils  terui.s,  is  not  a  coiiiiiliaiK-c   wirli  the  stalntci  1) 

Sec:.  83.  2.  When  a  wi-itiuj^",  sii;'ii('(l  tir  iiii>ii;iir(l,  (■(intains  a  jiart 
only  of  tli(^  contract,  letters  t)r  other  jiapers  may  coniplete  it  by  .snp- 
plying  the  other  terms,  and  the  si>;iiatnre.s  if  it  Ue  iinsi^ne(l.  In  this 
case  there  mnst  be  a  reference,  and  jiaroi  evidence  may  be  nsed  for 
the  same  }>nrpose,  and  under  the  same  circumstances,  as  in  the  lasT 
mentioned  case. (2) 

yEC.  b4.  8.  Finally,  the  memorandnni  may  consist  wholly  in  letters, 
wliich,  taken  togetlier,  constitute  the  contract.  This  i-  often  Ihc^  ca:se 
where  the  agreement  results  from  negotiation.  The  letters  nnist 
clearly  show  that  the  minds  of  the  i)arties  luive  met  u[)on  exactly  the 
same  points;  that  the  pro[)Osals,  on  the  one  side,  liave  been  accented 
on  the  other  ;  and  they  must  refer  to  each  other  in  such  a  manner  as 
to  show  the  conunon  object  of  the  writers.  Parol  evidence  may  Ix; 
resorted  to  for  the  purpose  of  identiiication  and  explanation. (8)     It  is 

(1)  Clerk  i\  Wridit,  1  Atk.  12 ;  Rose  v.  Cunj-ngliamo,  11  Yes.  fj-lO. 

(2)  W.arntn-  v.  Willing-ton,  3  Drew.  523.  An  extreme  case.  The  (lefend.ant,  jus 
the  lessee,  had  signed  a  niemoramluni  of  an  agreement  for  a  lease,  whi<li,  liow- 
ever,  did  not  contain  the  lessor's  name,  and  was,  therefore,  defective.  Hesiibse- 
queiitly  wrote  a  letter  concerning  it,  which  gave;  the  lessor's  nanie,  but  at  the 
same  time  abandoned  the  purpose  of  leasing,  and  withdrew  the  memoranibnn. 
V.  C.  Ki.VDEKSLEY  held  that  the  memorandum  and  the  letter  together  nia<le  out  all 
the  terms,  and  formed  a  completed  contract,  although  the  objectof  the  letter,  as  a 
whole,  was  to  repudiate  the  agreement.  This  case;  has  l)een  severely  criticised, 
on  the  gi'ound  that  the  letter  should  have  been  taken  as  a  whole,  and  it  is  of  very 
<lou1)tful  authority.  See  per  L  J.  Turxer,  in  Wood  v.  Midghn-.  5  De  G.  M.  &  Gr. 
41,  46 ;  and  Goodman  v.  Grifllths,  2t>  L.  J.  Ex.  14.1 ;  Gosbell  i\  Archer,  2  A.  &;  E. 
500;  Dol)ell  v  Hutchinson,  3  A.  &  E.  371;  Richards  v.  Porter,  C  B.  &  ('.  437; 
Cooper  V.  Smith,  15  East,  103;  [Townsend  v.  Kennedy  (S.  Dak.),  00  N.  W.  Rep. 
164  (October  2,  1894) ;  Coombs  v  Wilkes  [1S91J,  3  Ch.  77  (memorandum  not  sufli- 
ciently  referred  to).  In  Studds  v.  Watson,  28  Ch.  D.  305,  it  was  hekl  that  the 
word  "  balance,"  in  a  letter,  sutiiciently  i-eferred  to  a  pi-eceding  receipt  which  con- 
tained other  terms  of  the  contract  to  enable  the  two  documents  to  l)e  read  together.] 

(3)  Western  v.  Russell,  3  V.  &  B.  187 ;  Thomas  v.  Blackman,  1  Coll.  C.  C.  301 ; 
Brettel  v.  Williams,  4  Wels.  H.  &  G.  623 ;  Owen  v.  Thomas,  3  My.  &  Ke.  353 ; 
Verlander  v.  Codd,  Turn.  &  Russ.  352  ;  Parkhurst  v.  Van  Coi-tlandt,  14  Johns.  15  ; 
Tallmano;.  Fi-anklin,  14  N.  Y.  584;  Lerned  ?).  Wannemacher,  VI  Allen,  416 ;  llud- 
dleston  v.  Briscoe,  11  Yes.  583;  Howard  v.  Okeover,  cited  3  Swanst.  421  ;  Fcirster 
v  Hale,  5  Yes.  308;  Matteson  ■«.  Scolield,  27  Wise.  671;  Lyman  v.  Robinson,  14 
Allen,  242;  Princ(!  v.  Pi-ince,  12  Jur.  (N.  S.)22L ;  Canton  Co.  v.  Northei-n,  etc.,  R. 
R  21  Md.  383,  and  ca'^es  cited,  ante,  §}  82,  83.  [Soe,  also,  I\Iav  ''.  Thompsi)n,  20  Ch. 
D.  705,  per  Jessel,  M  R.  ;  Bellamy  v  Delu-nham,  45  C!i.  D.'4S1  ;  Otis  v.  Payne,  2 
Pickle  ( i'enn. ),  663;  Cunningham  v  Williams,  43  Mo.  ApjK  62',l.  |  Ne.sham  t'..Selby, 
L.  R.  7  Ch.  406  ;  id.  13  E;x.  i'.ll,  well  illustrates  the  nec.es.'^ary  features  of  a  corres- 
jiondence  in  oi-der  to  C'.)n.--.titute  a  binding  contract.  It  was  a  suit  by  the  owner  to 
enforce  specific  performance!  of  an  agi-ecMuiMit  to  take  a  lease  of  a  house,  which 
defendant  denied.  There  had  been  a  \-('i-bal  agreement,  and  to  satisfy  the  stat- 
ute of  fraud.s,  the  plaintiff  relied  upon  a  letter  of  the  defendant,  in  which  lie 
agreed  to  tal;e  a  lea^^e  of  the  house  for  seven  years  on  certain  terms,  but  did  not 
state  the  d;iy  on  which  the  letting  was  to  commenci" ;  and  a  second  lettei-in  which 
defendant  diil  state  the  day  of  comnK^ncement,  but  a<lde<l  new  conditions,  which 
the  plaintifl"  <lid  not  iiccejjt.  Held,  that  the  letters,  either  taken  singly  (>r  togellior, 
did  not  constitute!  ii  sutiicient  memorandum.  'I'he  tirst  letter  was  det'ectixe  in 
omitting  an  essential  tei-m  of  the  contract ;  the  second,  l)y  adeioLT  new  conditions, 

1  •_'.-) 


122  SPECIFIC   PEUFOKMAyCE    OF   CONTRACTS. 

not  essential  that  the  letter  should  be  addressed  by  one  of  the  con- 
tracting parties  to  the  other;  since  the  statute'  of  frauds  is  only- 
concerned  with  the  evidence  by  which  an  agreement  is  to  be  estab- 
lished, a  letter  written  by  one  of  the  parties  to  a  third  person  will  be 
a  sufficient  memorandum,  provided  it  contains  the  terras  itself,  or 
adopts  them  as  stated  in  another  writing,  and  provided  there  is  a 
sufficient  signing.  (1) 

The  contents  of  the  memorandum. 

Skc.  85.  3.  The  memorandum,  whether  consisting  of  one  writing 
or  of  several,  must  contain  all  the  essential  terms  of  the  agree- 
ment so  stated,  that,  while  parol  evidence  may,  perhaps,  be  resorted 
to  for  purposes  of  identification  and  to  explain  the  situation  of 
the  parties  and  of  the  subject-matter,  it  shall  not  be  required 
to  supply  any  substantive  feature  which  has  been  omitted. (2) 
While  the  memorandum  must  thus  embrace  the  substance  of  the 
contract,  it  need  not  describe  the  terms  in  a  comj^lete  and  detailed 
manner.;(3)  it  is  enough  that  what  the  parties  have  really  assented 
to,  can  be  gathered  from  the  writing,  and  is  not  left  to  the  recollec- 
tion of  witnesses.  When  this  requirement  is  complied  with,  the 
demands  of  the  statute  are  satisfied,  however  brief  and  informal 
the  document  may  be.  AVhen  it  is  clear  that  the  parties  have 
actually  agreed,  the  courts  are  anxious  and  have  often  been  very 
astute  to  discover  that  agreement  in  the  writing  which  purports 
to  contain  its  terms,  and  have  sometimes,  I  think,  gone  very  far 
towards  a  practical  repeal  of  the  statute.  (4) 

which  plaintiff'  had  not  accepted,  left  the  entire  contract  unconcluded.  See  Crossly 
V.  Maycock,  L.  R.  18  Eq.  180;  [Pacitic  R.  M.  Co.  v.  Railway  Co.  90  Cah  627; 
Wristen  v.  Bowles,  82  Cal.  84]. 

(1)  See  the  point  thoroughly  discussed,  although  arising  under  another  clause 
of  the  statute,  and  decided  in  Gibson  ?).  Holland,  L.  R.  1  C.  P.  1 ;  Welfoi-d  v. 
Beazely,  3  Atk.  503 ;  Child  v.  Comber,  3  Sw.  423,  n.  ;  Seagood  v.  Meale,  Prec.  in 
Ch.  560 ;  Barkworth  V.  Young,  4  Drew.  1,  13 ;  [Lee  v.  Cherry,  95  Tenn.  707 ;  4 
Am.  St.  Rep.  800  ;  Contra,  Potter  v.  HoUister,  45  N.  J.  Eq.  508  ;  and  see  cases 
collected  in  reporter's  note]. 

(2)  Parkhurst  v  Van  Cortland,  1  Johns.  Ch.  274  ;  Coles  v.  Bowne,  10  Paige,  526. 

(3)  Ives  1).  Hazard,  4  R.  I.  14,  The  nature  and  essentials  of  the  memorandum 
are  well  stated  by  Sir  G.  Jessbll,  M.  R  ,  in  Potter  v.  Duffield,  L.  R.  18  Eq.  44, 
and  in  Joseph  v.  Holt,  37  Cal.  2r)0,  253,  l)y  Saxderson,  J. 

(4)  Barry  v.  Coombe,  1  Pet.  640.  The  following  examples  of  documents  held 
to  be  sufficient  memorandums,  under  the  statute,  will  serve  to  illustrate  the 
statement  of  the  text.  Receipt  for  the  purchase-money  of  land,  Barickman  v. 
Kuykendall,  6  Blackf.  21  ;  Ellis  v.  Deadman,  4  Bibb.  467 ;  Evans  v.  Prothero, 
13  Eng.  Law  &  Eq.  163;  [Tyler  v.  Ontz  (Ky.),  20  S.  W.  256  ;  Phillips  v.  Sw.-mk, 
120  Pa.  St.  76 ;  Schweitzer  v.  Connor,  57  Wis.  177 ;  note  given  for  the  purchase- 
price,  Reynolds  v.  Kirk  (Ala  ),  17  So.  Rej^.  95  (Jan.  80, 1895)];  a  stated  account  in 
which  a  vendor  of  land  charges  himself  with  the  price.  Barrv  v  Coombe,  1  Pet. 
(U.  S  )  640 ;  Denton  v.  McKenzie,  1  Desaus.  Ch.  289  ;  Bourland  v.  Co.  of  Peoria, 
16  111  538  ;  an  order,  Lerned  v.  Wannemacher,  9  Allen,  416  ;  i-eturn  of  a  .'^hcriff 
on  execution,  Hanson  v.  Barnes,  3  Gill  k,  Johns.  359  ;  Fcnwii-k  7'  Floyd,  1 
Harr.  &  Gill.  172;  Barnev  r.  Patterson,  6  Har.  &  Johns.  182;  Nich'ol  v. 
Ridley,  5  Yerg.  63  ;  Elfe  v.  Gadsden,  2  Rich.  373 ;  [Stearns  v.  Edson,  63  Vt.  259]; 

126 


MEMORANDUM  KEQUIRKD   liV  STATUTE.  123 

Sec.  86.  The  nieinorauduiii  must  contain  the  substantive  terms  of  a 
<5onchide(l  contract,  as  has  already  been  shown. (1)     It  will  not  satisfy 

enti-y  iu  iiu  auctioneer's  book  containinfc  piii-chaser's  name,  pi-ice,  etc.,  Gill  v. 
Bicknell,  2  Cush.  355 ;  Coles  v.  Frecothick,  9  Vea.  234  ;  Buckniaster  v.  Harrop, 
7  Ves.  341 ;  Blagden  v.  Bradbear,  12  Ves.  4156  ;  Moi-ton  v.  Dean,  13  Met.  3S5  ; 
McConib  V.  Wi-i^'ht,  4  Jolms.  Ch.  650  ;  Cleaves  v.  Fos.s,  4  Greenl.  1  ;  Singstack  v. 
Harding,  4  Har.  &  Johns.  180  ;  Sniitii  ?'.  Jones,  7  Leigh,  HJ5  ;  Adams  («.  McMillan. 
7  Port.  (Ala.)  "3;  Gordon  v.  Sims,  2  McCord  Ch.  1(34  ;  Eudicott  v.  \\-w\y,  14  Sm. 
&  Marsh.  157  ;  so  of  sheritts  and  their  deputies,  Christie  v.  Simpson,  1  Rich. 
407;  Endicott  v.  Penny,  14  Sm.  &.  Marsh.  157  ;  Robinson  v.  Garth,  G  Ala.  204  ; 
Ennis  v.  Waller,  3  Blackf.  472  ;  Brent  v.  Green,  6  Leigh,  16 ;  Can-ington  v. 
Anderson,  5  Munf.  32  ;  ditto  administratoi's.  Smith  v.  Arnold,  5  Mason,  417  ;  ditto 
court  commissioner-s,  Jenkins  v.  Hogg,  2  Const.  (S.  C.)  821 ;  Gordon  v.  Sims,  2 
McCord  Ch.  164  ;  Hutton  v.  'Williams,  35  Ala.  503  ;  vote  of  a  corporation  entere<l 
on  their  books  and  signed  by  their  clerk  is.  Tufts  v.  Plymouth  Gold  Min.  Co.,  14 
Allen,  407;  Johnson  v.  Trinity  Ch.  Soc,  11  Allen,  123;  Cha.se  v.  Lowell,  7  Gray. 
33 ;  Rhoades  v.  Castner,  12  Allen,  130.  Clark  v.  Burnham,  2  Story,  1  :  "  Ells- 
worth, Dec.  15,  1834.  Received  of  D.  B.  &  C.  S.  C.  $1,000,  to  be  accounted  for 
if  they  shall  furnish  me  satisfactory  security  for  certain  lands  on  the  Naraguagn.si 
river,  say  119,000  aci-es  for  $113,000,  on  or  before  Friday  moniing  next;  other- 
wise to  be  forfeited — John  Black."  Held,  a  sufficient  agi-eement  to  sell  the 
lands.  Westervelt  v.  Matheson,  1  Hoff.  Ch.  37 :  "  Received  from  A.  ?20  on  account 
of  the  purchase  of  a  house  and  lot.  No.  38  Hammond  street,  at  ?2,900,  subject  to 
a  lease  to  B.  for  four  years  from  the  first  of  May  next ;  $1,000  may  remain  by 
bond  and  mortgage  ;  the  balance  the  fii-st  of  May,  when  the  deed  will  be  exe- 
cuted and  possession  given,"  a  binding  contract  for  the  sale  of  land.  Hatcher  v. 
Hatcher,  1  McMullen  Ch.  311.  A.'s  land  was  to  be  sold  on  execution  B.  ver- 
bally agreed  with  A.  to  purchase  it  at  the  sheriff's  sale  with  his  own  money,  and 
to  reconvey  to  A.  when  the  latter  should  refund  him  the  ]>iirchase-j)rice.  A. 
afterwards  made  a  part  payment  and  B.  gave  him  a  leceipt,  stating  that  the  sum 
received  was  in  part  payment  for  the  land,  describing  it  and  adding,  "  this  iu 
part  payment  to  redeem  the  land  from  B."  Held,  that  this  receipt  was  a  suffi- 
cient memorandum  of  the  contract  to  reconvey,  and  that  the  considei-ation  might 
be  shown  by  reference  to  other  written  evidence.  Little  v.  Peai-son,  7  Pick.  301. 
B.  gave  A.  a  note  for  1?100,  payable  to  A.  or  order  on  demand,  with  the  follcnving 
clause  subjoined  :  "  N.  B.  This  note  to  be  given  up  when  I  give  him  a  deeil  of 
the  land  what  I  have  engaged  to  give  him,"  signed  B.  This  document  was  held 
to  be  a  sufficient  memoi-andum  of  an  agreement  to  convey  upon  which  to  decree  a 
specific  ]>erformance.  This  decision,  I  think,  trenches  upon  the  statute,  and  can- 
not be  reconciled  with  several  others.  Granting  that  all  the  rest  of  the  contract 
Js  stated,  the  subject-matter  is  actually  not  described.  Parol  evidence  is  re(piisite 
to  do  far  more  than  merely  identify  the  particular  jiarcel  of  land  mentioned  in  the 
wnting  ;  it  must  in  fact  supply  this  term,  which  is  left  wholly  resting  in  the  verbal 
agreement.  See  by  way  of  contrast  King  v.  Wood,  7  Mo.  389 ;  Ellis  v.  Dend- 
man,  4  Bibb.  466,  the  following :  "4th  January,  1808.  Received  of  I.  Ellis  ?.^00, 
in  part  pay  of  a  lot  bought  of  me,  in  the  town  of  V.,  it  being  the  cjvsh  part  of  the 
purchase  of  said  Jot.  N.  Deadman,"  was  held  iwt  to  be  a  sufficient  memorandum. 
[l''he  following  memorandum,  signed  by  both  parties,  held  sufficient :  "  I  have 
purchased  from  W.,  Silver  Lake  Place,  near  W  ,  Ky.,  containing  52  acres  *  *  * 
cash,  to  be  jiaid  when  iiosscssion  is  given  in  a  few  weeks  ;"  Winn  v.  Henry,  f4 
Ky,  48.  For  further  examples  of  informal  memoranda,  see  llochl  v.  Haumesscr, 
114  Ind.  311 ;  Magee  v.  Blankenship,  95  N.  C.  563  (a  deed)  ;  Tyler  v.  Ontz  (Ky.), 
20  S.  W.  Rep.  256.] 

(1)  See  ante,  section  III.  of  this  chapter. 

127 


124  SPECIFIC  PERFORMANCE    OF    CONTRACTS. 

the  .statute  us  being  "  the  agreement  or  a  note  or  memorandum  thereof 
in  writing,"  where  any  part  of  the  intended  contract — i.  e.,  of  the 
very  contract  of  which  it  })Mrports  tt)  be  a  memorandum — is  left  to 
further  negotiation  ;(1)  -mkX  a  fortiori  when  the  entire  arrangement 
is  still  in  the  condition  of  negotiation  so  that  one  party  may  with- 
draw ;('2)  or  where  it  leaves  any  term  or  terms  of  the  contract  for 
future  settlement ; (8)  or  it  contains  only  certain  matters  which  have 
been  agreed  upon  as  the  preliminaries  to,  or  basis  of,  the  intended 
contract,  and  not  the  final  contract  itself. (4)  These  instances  of 
imperfect  memorandums  should  be  carefully  distinguished  from  the 

(1)  Orilvie  V.  Foljambe,  8  Mer.  53;  Stratford  ii.  Bosworth,  2  Y  &  B.  341; 
Ta^\^ley  v.  Crowther,  3  Bro.  C.  C.  318 ;  Roberts  v.  Tucker,  3  Wels.  H  &  G.  G32  ; 
Barry  v.  Coombe,  1  Pet.  (U.  S.)  640;  Ballingall  v.  Bradley,  16  lil.  373;  ll-azard 
V.  Day,  14  Alien,  494  ;  [May  v.  Thompson,  20  Ch.  D.  705].  It  should  be  ob.served, 
however,  that  the  contract  of  which  the  memoi'andum  is  the  evidence,  may  be 
wholly  concluded  and  binding-,  although  the  parties  in  tlie  same  document  make 
reference  to  another  distinct  matter  yet  resting  in  negotiation  and  concerning 
what  they  intend  or  desire  to  contract  at  some  futiu-e  time. 

(2)  Lord  Glengal  v.  Barnard,  1  Keen,  769. 

(3)  Honeyman  v.  Marryatt,  21  Beav.  14 ;  6  H.  L.  Cas.  112 ;  Wood  v.  Midgley, 
5  Be  G.  M.  &  G.  41.  In  the  first  of  these  two  cases,  H.'s  solicitor  had  wiitteii 
offering  £25,000  for  a  certain  estate  advertised  to  be  sold  by  M.  M.'s  solicitor, 
answered  by  letter :  "Mr.  M.  has  authorized  us  to  accept  the  offer,  subject  to  the 
tei-ms  of  a  contract  being  arranged  between  his  solicitors  and  yourself  Mr.  M. 
requires  a  deposit  of  from  £1,200  to  £1,500,  and  the  purchase  to  be  completed  at 
midsummer  day  next."  This  letter  simply  accex^ted  the  proposed  price,  but  left 
all  the  rest  of  the  contract  unfinished,  and  these  terms  neA'er  being  concluded,  a 
specific  performance  at  the  suit  of  H.  was  therefore  refused.  [Duff  v.  Hopkins, 
33  Fed.  Rep.  607  ;  Los  Angeles  Immigration,  etc  ,  Assoc  v.  Phillijis,  56  Cal.  539  ; 
Gaslight,  etc.,  Co.  v.  City  of  Nev/  Albany  (Ind.),  39  N.  E.  462  (Dec.  14,  1394) 
(contract  to  furnish  a  city  A\dth  electric  lights,  lea\-ing  the  number  and  price  of 
the  lights  to  be  fixed  by  an  "equitable"  agreement  to  be  afterwards  made,  not 
enforced) ;  Wharton  -«.' Stout enl)urgh,  35  N.  J.  Eq.  266  ;  Magee  v.  McManus,  70 
Cal.  553;  Gates  v.  Gamble,  53  Mich.  181.]  The  memorandum  is  not  valid,  if  it 
refer  to  the  alleged  agreement  and  repudiate  it,  declaring  it  not  binding-.  Wood 
V.  Midgely,  5  De  G.  M.  &  G.  41 ;  Goodman  v  Griffiths,  S8  Eng.  L.  &  Eq.  431; 
Archer  v.  Baynes,  5  Wels.  H.  &  G.  625  ;  Richards  v.  Porter,  6  B.  &  C.  437 ;  Cooper 
V.  Smith,  15  East,  103  ;  [Masterson  v.  Little,  75  Tex.  6S2J;  or  if  it  make  variations 
or  conditions,  William  v.  Bacon,  2  Gray,  887;  Jenness  v.  Mt.  Hope  Co  ,  53  Me. 
20 ;  Smith  v.  Sui-man,  9  B.  &  C.  561.  But  a  writing  may  be  a  binding  memo- 
i-andiun  contrary  to  the  special  de.sign  of  the  party  in  executing  it ;  a^  where 
defendant  wrote  a  letter  declining  to  sign  a  draft  of  the  agreement  wliicli  had  been 
pre%'iously  made,  but  sajdng  that  his  A-y-ord  should  be  as  good  as  his  bond ;  this 
letter  w"as  held  to  be  a  good  memorandimi.  It  will  be  noticed  that  he  did  not 
I'epudiate  the  verbal  contract  alreadj^  made  ;  but,  on  the  contrary,  announced  his 
determination  to  be  bound  by  it,  and  only  ref-ased  to  sign  the  draft,  and  thei'efore 
his  letter  was  very  i)roiierly  held  to  supply  the  place  of  hi.^  signing.  Tawney  v. 
Cro\vther,  3  Bi-o.  C.  C.  318.  See,  also,  in  this  connection,  Jackson  v.  Lowe,  1 
Bing.  9 ;  Dobell  v.  Hutchinson,  3  A.  &  E.  355 ;  Saunder.son  i'.  Jackson,  2  B.  &;  P. 
238 ;  Fitzmaurice  v.  Bavlev,  38  Eng.  L.  &  Eq.  136  ;  Bailev  v.  Sweeting,  30  L.  J 
C.  P.  150;  McClean  v.  Nictiolle,  4  L.  T.  (N.  S.)  863;  [Kayser  v.  Ai-nold,  124  N.  Y. 
274  ;  Metropolitan  Exhibition  Co.  v.  Ewing,  42  Fed.  Rep.  18  ;  Callanan  v.  Chapin, 
158  Mass.  113;  Mayer  v.  McCreerv,  119  N.  Y.  434;  St.  Louis,  etc.,  R.  R.  v. 
Beidler,  45  Ark.  17  ;  Stamms  v.  O'Donohue,  8  Ont.  Ap.  R.  161]. 

(4)  Frost  v.  Moulton,  21  Beav.  596;  [Los  Angeles  Immigi-ation,  etc.,  Assoc,  v. 
Phillips,  56  Cal.  539.  An  agreement  whereby  the  plaintiff  is  given  a  first  or 
preferential  right  to  enter  into  a  contract  wiih  the  defendant  on  such  terms  as 
may  be  fixed  and  determined  by  the  defendant  is  not  one  that  can  be  specifically 
(Miforced :  Domestic  Telegraph  Co.  v.  Metropolitan  Telephone  Co..  39  N.  J.  Eq. 
16J  ;  Metropolitan  Exhibition  Co.  v.  Ewing-,  42  Fed.  Rep.  18]. 

128 


MEMORANDUM  REQUIRED   HY  STATUTE.  125 

cases  which  ave  controlled  by  the  doctrine  ah-eady  discnssed,  namely, 
that  if  there  lias  been  a  final  a^freenient  and  thi'  terms  of  itcvidcnct'd 
in  a  manner  to  satisfy  the  statnte  of  frands,  the  agreement  shall  be 
binding,  although  the  parties  may  have  declared  that  the  writing  is 
to  serve  only  as  instructions  for  a  formal  agreement,  or  although  it 
may  be  an  express  term  that  a  formal  agreement  shall  be  prepared 
and  signed  by  the  parties.(l)  / 

Sec.  87.  What  are  the  essential  or  substantive  features  of  the  agree- 
ment which  must  ajipear  on  the  face  of  the  memorandum  in  order 
that  it  may  comply  with  the  requirements  of  the  statute  r*  They  are  : 
1,  the  parties;  2,  the  subject-matter;  3,  the  promises  upon  both 
sides  ;  4,  the  price  ;  and  under  the  original  and  ordinary  language 
of  the  statutory  provision,  5,  the  consideration.  If  the  memorandum 
consists  of  two  or  more  papers,  a  part  of  these  terms  may  be  found  in 
one  writing,  and  a  part  in  another. (2) 
Parties. 

8ec.  88.  To  satisfy  the  statute  of  frauds  the  memorandum  of  an 
agreement  must  contain  either  the  names  of  the  contracting  ])arties 
or  such  a  description  of  them  that  there  cannot  be  any  reason- 
able doubt  as  to  their  identity.  In  applying  this  rule,  agents,  by 
whom  the  memorandum  is  executed,  are  considered  as  equivalent  to 
the  parties  themselves.  The  names,  when  expressed,  may  be  included 
in  the  body  of  the  instrument,  or  may  be  subscribed  at  its  close.  If  a 
party  is  not  named  but  is  described,  the  description  must  be  such  that 
its  application  to  the  particular  person  intended  will  appear  certain 
and  direct  by  means  of  extrinsic  evidence  describing  the  situation  and 
surrounding  circumstances  of  the  subject-matter ;  the  description 
must  point  to  an  individual  and  extrinsic  evidence  be  needed  only 
to  identify  him.  Thus,  in  a  contract  for  the  sale  of  land,  a  mem- 
orandum is  insufficient,  in  which  the  only  description  of  one  of  the 
parties,  whose  name  nowhere  appeared,  is  the  word  "  vendor."(3)  The 

(1)  Per  Lord  Chun.  Westbcry.  in  Chinnork  r.  M;irc)iionPss  of  Kly,  4  Do  (J.  .1.  & 
S.  (538,  646.  and  see  ante,  §  G:}  ;  [also  Wharton  v.  Stollt(■^lml•,^'■ll,  li.")  N.  J.  Ivj.  260]. 
S.  638,  646,  and  see  ante,  §  63. 

(2)  As  in  the  common  case  of  "  bought  and  sold  notes,"  and  in  contracts  con- 
cluded by  letters  as  desci-ibed,  ante,  §§  82-84.  Thus  it  has  been  shown  that  a 
letter  may  contain  the  signature  only,  and  adopt  by  reference  the  other  terms  which 
are  all  found  in  a  separate  unsigned  document. 

(3)  The  doctrine  of  the  text  is  illustrated  by  the  following  cases  :  Potter  v. 
Duffield,  L.  R.  18  Eq.  4.  Real  estate  was  sold  at  auction.  The  jiarticulars  and 
conditions  did  not  give  the  names  of  the  vendors,  nor  state  in  any  niannei' who 
they  were,  but  sim]ily  spoke  of  them  as  the  "vendors  or  the  vendor,"  and  an- 
nounced that  one  "B."  was  the  auctioneei-.  The  jnu'cha-ser  of  a  lot  .signed  a 
memordandum  acknowledging  his  purchase,  and  B.  wrote  and  signed  at  the  foot 
thereof  as  follows  :  "Confirmed  on  behalf  of  the  vendor  B."  In  a  suit  against 
the  vendee  it  was  held  by  JBSSKi-,  M.  R.,  that  this  memorandum  did  not  suffi- 
ciently show  the  parties — the  vendoi',  and  a  specific  performance  was  refused.  Tliia 

129 


126  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

cases  in  the  foot-note  show,  however,  that  a  slight  and  general  descrip- 
tion is  enough,  it  serves  to  point  out  the  party,  and  renders  his  identi- 
fication by  extrinsic  evidence  possible.  How  far  parol  evidence  may 
be  used  to  explain  the  niemoranduni  in  relation  to  the  parties,  and 
to  define  the  relations  in   which   they  stand  to  each  other,   and  to 

case  is  distiiig-uishable  from  some  to  be  soon  cited,  in  which  contracts  made  by 
agents  on  behalf  of  undisclosed  principals  have  been  sustained,  from  the  fact  that 
the  a'j;i-eement  here  does  not  purport  to  be  that  of  the  ag-ent  as  the  contracting 
pai-ty ;  it  purports  to  be  signed  by  the  agent  on  behalf  of  !-ome  party,  and  who 
that  party  was,  is  not  shown.  If  the  sale  had  been  made  in  B.'s  name,  and  the 
memorandum  signed  by  him  as  the  vendor,  then  his  principal,  the  real  owner, 
could  have  enforced  it.  This  case  should  be  comjiared  with  Sale  v.  Lambert,  L. 
R.  18  Eq  1,  also  decided  by  Jessel,  M.  R.  Upon  a  sale  of  lots  at  auction  the 
"  particulars  "  stated  that  the  sale  was  bydirection  "  of  the  proprietor,"  but  the 
A-endor's  name  did  not  appeal-.  A  memorandiun  of  sale  indorsed  on  a  copy  of 
these  particulars  was  signed  by  the  purchase]-  and  by  the  auctioneer,  *'  on  behalf 
of  the  vendor."  In  an  action  for  a  specilic  performance  by  the  vendee,  it  was  held 
that  the  vendor  was  sufficiently  described,  and  that  the  memorandum  w^as  good 
under  the  statute  of  frauds.  These  two  cases  appear  to  be  analogous,  but  arc 
clearly  distinguishable.  In  the  former  caie  the  memorandum  simply  described 
the  party  as  "the  seller,"  which  give  no  clue  to  his  identity  —  that  is,  the  sup- 
pi  j-ing  this  term  of  the  contract  was  whoUij  due  to  parol  evidence.  In  the  latter 
case,  the  party  is  desci-ibed  as  "the  owner"  of  the  land.  As  the  owner  must  be 
some  definite  individual,  the  only  use  of-  parol  evidence  was  to  identify  the  per- 
son thus  designated.  In  Hood  v.  Lord  Barrington,  L.  R.  6  Eq.  218,  a  sale  was 
made  by  the  execvitors  of  the  deceased  owner  who  had  legal  authority  to  do  so. 
The  particulars  of  the  sale  stated  that  the  projierty  belonged  to  Admiral  F.. 
deceased,  and  that  the  sale  was  by  direction  of  his  executors,  not  naming  them. 
A  memorandum  of  sale  indorsed  on  a  copy  of  the  particulars  was  signed  by  A. 
and  B  ,  agents  "for  the  vendors."  Held,  by  Lord  Romilly,  M.  R.,  that  the  memo- 
randum was  sufficient  and  the  contract  binding.  Here  the  descriijtion  was 
plainly  sufficient.  Commins  v.  Scott,  L.  R.  20  Eq.  11.  An  agi-eement  to  sell  land 
did  not  disclose  the  name  of  the  vendor  ;  but  it  appeared  from  the  document  that 
the  vendor  was  a  company  in  possession  of  the  premises  sold  and  that  it  carried 
on  operations  therein.  The  M.  R.  Jessel  held  that  the  vendor  was  sufficiently 
described  to  satisfy  the  statute.  [McCarthy  v.  Cooper,  12  Out.  A.  R.  234  ]  Also, 
Champion  v  Plummer,  1  B.  &  P.  (N.  R  )  252  ;  Waterman  v.  Meigs,  4  Cush.  497  ; 
Nichols  V.  Johnson,  10  Conn.  192  ;  Sherburne  v.  Shaw,  1  N.  H.  157  ;  Webster  v. 
Ela,  5  id.  540 ;  Farwell  v.  Lowlher,  18  111.,  252 ;  Sheid  v.  Stamps,  2  Sneed,  172  ; 
[Lewis  V.  Wood,  153  Mass.  321  (memorandum  does  not  contain  name  or  any  desig- 
nation of  purchaser;  contract  not  enforced)  ;  Joy  V.  St.  Louis,  138  U  S.  1,  50; 
Breckinridge  v.  Crocker,  78  Cal.  529  (memorandum  insufficient,  consisting  of 
telegram  addressed  to  purchaser  by  name,  but  not  indicating  who  the  })urchaser 
wa:i;  Pattle  v.  Ansti-uther.  4  Reports,  470j  69  Law.  J.  174,  41  Weekly  Rep,  625; 
Shijiman  v.  Campbell  (Mich.),  44  N.  W.  Rep.  171;  Winter  v.  Trainer  (111.),  87 
N.  E.  869  ;  Lee  v.  Cherry  (Tenn.),  4  S.  W.  Rep.  835  (vendee  sufficiently  indicated 
by  the  words  "Mr.  Lee'*);  Easton,  Eldridge  &  Co.  v.  Millington  (Cal),  38  P. 
509  (Dec.  10,  '94);  Coombes  v.  Wilkes  |1891],  3  Ch.  77  (memorandum  does  not 
identify  vendor;  WiUiams  v.  Brisco,  22  Ch.  D.  441  (contract  to  g-rant  a  lease  to 
the  nominee  of  the  plaintiff,  viz  ,  a  company  to  be  formed  by  the  plaintiff,  canncl 
be  enforced,  since  at  the  time  of  the  trial  no  company  had  been  formed)].  In 
Champion  v.  Plummer,  which  is  the  leading  case,  decided  by  the  Oh.  of  Exch. 
Chamb.,  Sir  James  Mansfield,  C.  J.,  stated  the  doctrine  as  follows,  which  was 
adopted  by  the  court :  The  vendor's  name  appeared,  but  not  the  purchaser's  i;i 
any  manner.  "  How  can  that  be  said  to  be  a  contract  or  memorandum  of  a  con- 
tract which  does  not  state  who  are  the  contracting  parties  ^  By  tkl3  note  it  does 
not  at  all  appear  to  whom  the  goods  were  sold.  It  would  prove  a  sale  to  any 
other  person  as  well  as  to  the  plaintiff.  There  cannot  be  a  contract  wthout  two 
parties,  and  it  is  customary,  in  the  course  of  business,  to  state  the  name  of  the 
purchaser  as  well  as  the  seller,  in  every  bill  of  parcels.  This  note  does  not 
appear  to  me  to  amount  to  any  memorandum  in  writing  of  a  bargain." 

130 


MEMORANDUM  REQUIRED   BY  STATUTE.  Ill 

the  subject-matter,  has  been  discussed  in  recent  cases  arising  under 
the  clause  of  the  statute  concerning  the  sale  of  chattels,  and  the  doc- 
trines which  they  establish  may  be  applied  to  agreements  governed 
by  the  clauses  now  under  examination.  Wlien  a  memorandum  of 
sale  states  the  two  parties  by  name  or  description,  but  does  not  indi- 
cate, either  expressly  or  by  inference,  which  is  the  seller  and  which  the 
buyer,  can  extrinsic  evidence  be  used  to  distinguish  the  i)art,ies,  and 
thus  explain  the  nature  and  effect  of  the  contract  ?(1;  The  following 
rule  is  clearly  established  by  these  cases.  It  must  appear  in  the 
body  of  the  instrument,  or  in  the  signatures,  either  exi)ressly  or  by 
description,  who   the   parties  are;    an   agent  being  considered  as 

(1)  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  (U.  S.)  446.  Action  by  the 
company  to  recover  the  price  of  goods  alleged  to  have  been  sold  to  defendant, 
Goddard.  Plaintifif  relied  wholly  on  the  following  memorandum :  •♦  Sept.  19. 
W.  W.  Goddard;  12  mo's;  300  bales  S.  F.  di-ills,  7^  ;  100  cases  blue  ditto,  S]. 
Credit  to  commence  when  ship  sails  ;  not  after  Dec.  1.  (Signed)  R.  M.  M.  ;  W.  W. 
G."  W.  W.  G.  were  the  initials  of  defendant.  R.  M.  M.  were  initials  of  one 
Mason,  an  agent  of  the  plaintiff.  Defendant  contended  that  this  memorandnm 
could  not  be  explained  by  j^arol  evidence  ;  that  it  did  not  state  the  parties  ;  but 
if  it  did — by  means  of  the  signature  of  plaintiff's  agent,  R.  M.  M. — it  did  not  state 
"which  was  the  seller  and  which  was  the  buyer.  There  was  no  dispute  that  the 
mercantile  abbreviations  could  be  explained.  The  court  held  that  the  signature 
"R.  M.  M." — which  was  conceded  to  be  as  effective  as  though  the  name  was 
■written  in  full — sufficiently  stated  the  plaintiff  as  a  party,  so  that  it  could  sue  on 
the  contract  made  by  its  agent ;  and  that  which  of  the  parties  was  the  buyer  and 
•which  the  seller  could  be  pi-oved  by  parol  evidence.  Curtis,  J.,  dissented,  being 
of  opinion  that  the  memorandum  should  indicate,  in  terms,  which  party  sells  and 
which  buys.  Vandenburgh  v.  Spooner,  L.  R.  1  Ex.  316.  Action  for  got;ds  sold. 
Plaintiff  relied  on  the  following  memorandum  :  "  D.  Sjiooner  agrees  to  buy  the 
whole  of  the  lots  of  marble  purchased  by  Mr.  Vandenburgh,  now  lying  at,  etc.,  at 
Is.  per  foot.  D.  Spooner."  Held,  not  a  sufficient  memorandum.  The  court  said 
(p.  319)  :  "  Can  the  essentials  of  the  contract  be  collected  from  this  document  by 
means  of  a  fair  or  reasonable  intendment?  "We  have  come  to  the  conclusion  that 
they  cannot,  inasmuch  as  the  seller's  name,  as  seller,  is  not  mentioned  in  it,  but 
occurs  only  as  part  of  the  description  of  the  goods."  This  case  may  be  completely 
reconciled  with  the  preceding  and  the  following;  by  the  fact  that  in  the  memo- 
randum the  seller's  name  does  not  appear  as  a  j^arty  at  all;  there  is  not  the 
slightest  intimation  that  Vandenburgh  was  the  other  contracting  party.  In  all 
the  other  cases  both  the  2}artles  do  appear,  although  their  position  towards  each 
other  is  not  disclosed  by  the  writing.  Newell  v.  Radford,  L.  R.  3  C.  P.  52.  Action 
by  a  vendee  against  the  vendor  for  non-deliveiy  of  goods.  It  was  proved  by 
parol  that  jilaintiff  was  a  baker,  defendant  a  dealer  in  fiour,  and  John  V{illiains 
was  defendant's  agent.  J.  \V.  came  to  plaintiff's  store  and  solicited  ordei-s,  and 
finally  wrote  the  following  in  the  plaintiff's  book:  "Mr.  Newell,  32  sacks  of  (a 
certain  kind  of  flour),  at  39s. ;  to  wait  ordei-s.  June  8.  John  Williams."  The 
flour  was  not  delivered.  The  defense  rested  upon  the  insufficiency  of  the  memo- 
randum, as  it  did  not  show  who  was  seller  and  who  buyer,  and  that  jiarol  evi- 
■dence  could  not  be  admitted.     Held,  tha:t  the  agent's  nanto  was  the  same  as 

131 


128  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

equivalent  to  a  party,  where  the  agreement  purports  to  be  made  by 
him.  Extrinsic  evidence  can  tlien  be  introduced  to  explain  the  situ- 
ation and  relations  of  these  parties,  their  business,  the  circumstances 
surrounding  the  transaction,  and  the  like,  whence  it  will  at  once 
appear  which  is  the  vendor  and  which  the  vendee.  This  use  of  parol 
evidence  is  no  more  than  that  which  is  always  proper  in  the  interpre- 
tation of  wills,  deeds,  and  other  written  instruments. 

Sec.  89.  When  the  agreement  is  executed  by  an  agent  in  his  own 
name,  he  appearing  to  be  the  contracting  party,  the  requisite  as  to 
parties  is  complied  with.  The  principal  may  maintain  a  suit  and 
enforce  the  contract,  and  it  is  immaterial  whether  the  principal  was 
actuallo  known  during  the  transactions,  or  whether  the  other  party  sup- 
posed that  he  was  dealing  with  the  agent  personally,  entirely  on  his 
own  behalf.  (1)  Under  the  same  circumstances,  it  is  now  the  rule  that 
a  suit  may  be  maintained,  and  the  contract  enforced  against  the 
principal,  even  though  his  name  nowhere  appears  on  the  face  of  the 
wrriting,  and  even  though  he  was  undisclosed  and  unknown  to  the 
other  party  at  the  time  of  entering  into  the  agreement,  provided,  of 
course,  it  was  actually  made  on  his  behalf. (2)     In  both  of  these  cases, 

though  the  defendant's  name  had  been  signed,  and  that  exti'insic  evidence  was 
admissible  to  show  which  was  the  seller  and  which  the  buyer ;  that  such  evidence 
does  not  alter  nor  add  to  the  contract,  but  merely  explains  the  surrounding  circum- 
stances and  situation  of  the  parties,  which  may  always  be  done.  This  decision  is 
identical  with  that  in  Howard's  Reports. 

(1)  Heard  v.  Pilley,  L.  R.  4  Ch.  548.  Suit  for  a  specific  performance  by  a 
vendee.  The  defendant,  Pilley,  who  was  an  agent  of  the  plaintiff,  under  a  parol 
authority,  made  a  written  contract  with  defendant,  Sugden,  in  his  own  name  ;  the 
fact  that  he  was  really  acting  as  agent  for  the  plaintiff  not  a^ipearing,  from  the 
case,  to  have  been  disclosed.  The  bill  sought  to  obtain  a  specific  performance 
against  S.,  and  to  have  it  declared  that  the  contract  made  by  P.  was  made  on 
behalf  of  the  plaintiff,  and  the  relief  was  granted.  Also,  Salmon  Falls  Mfg.  Co. 
V.  Goddard,  14  How.  (U.  S.)  446;  Higgins  v.  Senior,  8  M.  &  W.  834;  Hicks  v. 
Whitmore,  12  "Wend.  548 ;  Sims  v.  Bond,  5  B.  &  Ad.  389.  393,  per  Lord  Denman. 
*'  It  is  a  well-established  rule  that  when  a  contract,  not  under  seal,  is  made  with 
an  agent  in  his  own  name  for  an  undisclosed  jjrincipal,  either  the  agent  or  the 
principal  may  sue  upon  it." 

(2)  The  leading  case  in  support  of  this  rule  is  Higgins  v.  Senior,  8  M.  &  W.  834, 
in  which  Parke,  B.,  thus  states  the  doctrine  :  *'Thei-e  is  no  doubt  that  where  such 
a  written  agreement  is  made,  it  is  competent  to  show  that  one  or  both  of  the  con- 
tracting parties  were  agents  for  others,  and  acted  as  such  agents  in  making  the 
conti-act,  so  as  to  give  the  benefit  on  the  one  hand  to,  and  charge  with  liability  on 
the  other,  the  unnamed  principals  ;  and  this,  whether  the  agreement  be  or  be  not 
required  to  be  in  writing  by  the  statute  of  frauds  ;  and  this  evidence  in  no  way 
contradicts  the  written  agreement.  It  does  not  deny  that  it  is  binding  on  those 
whom,  on  the  face  of  it,  it  purports  to  bind,  but  shows  that  it  also  binds  another. 

132 


MEMORANDUM  REQUIRED   BY  STATUTE.  129 

in  order  that  the  rules  as  stated  may  be  operative,  tlie  writing  must, 
be  unsealed  wherever  the  comuion-law  doctrine  as  to  the  ertect  of  a 
seal,  is  retained  ;  but  it  should  be  remembered  that  in  many  of  the 
states  all  distinction  between  sealed  and  unsealed  instruments  has 
been  abolished  by  statute. (1) 
The  subject-matter. 

iSec.  90.  The  .•iubject-matter  of  the  agreement  must  all  be 
included  in  the  memorandum,  and  must  be  described  with  suf- 
ficient exactness  to  render  its  identity  certain  upon  the  introduction 
of  extrinsic  evidence  simply  disclosing  the  situation  of  the  i)arties 
at,  and   innnediately   before,    the    time    of   making   the    contract. (2) 

But,  on  the  other  haiKt,  to  allow  evidence  to  be  g-iven  that  the  party  who  uijpeai-s 
on  the  face  of  the  instrument  to  be  personally  a  conti-actiiiy  party  is  not  tsuch, 
would  be  to  allow  parol  evidence  to  contradict  a  written  agreement,  which  camiot 
be  done."  This  decision  and  reasoning  of  Baron  Pakke  have,  not  without  some 
dissent,  been  adopted  by  the  courts  of  this  country  as  well  as  of  England,  and 
the  rule  is  established  even  in  states  whose  earliei-  doctrines  were  very  strongly 
the  other  way.  See  Beckham  v.  Drake,  9  M  &  W.  79  ;  Jones  v.  Littledale,  6  A. 
&  E.  490,  per  Lord  Denman  ;  Newell  v.  Radford,  L.  R.  3  C.  P.  .52 ;  Lerned  v. 
Wannemacher,  9  Allen,  419.  Action  upon  a  written  agreement  to  sell  a  (piantity 
of  merchandise.  It  W'as  signed  by  "Wannemacher  &  Maxtield,"  and  defendant's 
name  nowhere  appeared  in  it.  Held,  that  a  suit  was  maintainable  against 
defendant  upon  proof  that  W.  &  M.  were  really  his  agents,  and  were  acting  for 
him.  Dykers  v.  Townsend,  24  N.  Y.  (10  Smith)  .'37.  On  the  following  memo- 
randum, "I  have  purchased  of  Dykers  500  shares  of  the  N.  Y.  &  E.  R'y  Co.,  at 
71  p.  c,  deliverable  in  60  days — W.  S.  Hoyt,"  the  defendant,  Townsend.  was  heid 
liable,  Hoyt  having  been  his  agent.  Ford  v.  Williams,  21  How.  (U.  S.)  287; 
Beer  v.  London  &  Paris  Hotel  Co.,  L.  R.  20  Eq.  412,  426;  per  Malins,  V.  C. 
[See,  also,  Mantz  v.  Maguire,  .52  Mo  Aj^p.  136  ;  Tewksbury  d.  Howard  (Iinl.),  37 
N.  E.  355.]  A  contract  of  sale  signed  by  an  auctioneer  on  behalf  of  an  imdisclosed 
proprietor  is  valid  under  the  statute 'of  frauds,  and  enforceable  against  him  ;  and 
to  the  same  effect  is  Walsli  ?\  Barton,  24  Ohio  St.  28.  The  doctrine,  as  .stated  in 
the  text,  is  denied  Ijy  some  American  cases.  Thus,  in  Morgan  i\  Bergen,  3  Neb. 
209,  it  was  held  that  a  contract  for  the  sale  of  land  must  he  in  the  jirincipal's  name  ; 
that  if  the  agent  sign  in  his  own  name,  either  for  himself  or  for  his  principal,  it  is 
his  contract  alone.  [So  held,  also,  in  Schenck  v.  Spring  Lake  Beach  Improve- 
ment Co.  47  N.  J.  Eq.  44.  See,  also,  Repetti  v.  Maisak,  6  Mackay,  366  ;  Clampet 
V.  Bells  (Minn.),  39  N.  W.  495  ;  O'Sullivan  v.  Overton  (Conn.),  14  Atl.  Rep.  300.] 

(1)  See  ante,  §  57.     See,  to  this  effect,  Briggs  v.  Partridge,  64  N.  Y.  357. 

(2)  McMurray  v.  Spicer,  L.  R.  5  Ecp  527.  Suit  by  a  vendor  for  a  specific  per- 
formance. The  defendant  agreed,  in  writing,  to  pui-chase  from  the  plaintiff  *♦  the 
mill  property,  including  cottages,  in  Esther  village — all  the  property  to  be  free- 
hold." The  subject-matter  being  fully  identified  by  parol  evidence,  it  Wius  held, 
by  Malins,  V.  C,  that  the  contract  was  not  void  for  aml)iguity,  since  parol  evi- 
dence was  admissible  for  pm-pose  of  identification.  In  King  v.  Wood,  7  Mo.  389, 
the  memorandum  of  an  agreement  to  sell  "all  that  piece  of  projierty  known  as 
the  Union  Hotel  pro])erty,"  was  held  to  be  fataHy  defective,  since  jiai-ol  evidence 
was  necessary  to  show  what  was  intended  to  be  sold.  The  decision  was  clearly 
wrong  under  the  authorities.  Parol  evidence,  merely  showing  that  vendor  was 
owner  of  premises  known  by  that  designation,  would  at  once  have  identified  the 
subject-matter  with  absolute  certainty.  As  to  desciMpfion  of  land,  see  ("linan  v. 
Cooke,  1  Sch.  &  Lef.  22 ;  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1  ;  Harnet  v.  Yielding,  2 

138 


130  SPECIFIC  FERFORMANCE   OF  CONTRACTS. 

Parol  evidence  is  admissible  to  show  the  surrounding  circumstances 
and  position  of  the  parties,  and  thus  to  explain  the  meaning-  and 
application  of  the  descriptive  language,  and  thereby  to  identify  the 

Sell.  &  Lef.  549  ;  Moiitacute  v.  Maxwell,  1  P.  Wins.  618  ;  Ives  v.  Armstrong,  5  R.  I. 
567  ;  Talniau  v.  Franklin,  3  Duer,  ,595  ;  Force  v.  Dutcher,  3  C.  E.  Green,  401  ;  Fergu- 
son V.  Staver,  33  Pa.  St.  411  ;  Church  of  the  Advent  v.  Farrow,  7  Rich.  Eq.  378; 
Meadows  v.  Meadows,  3  McCord.  458;  Carmack  v.  Masterton,  3  Stew.  &Port. 
(Ala.)  411 ;  Pipkin  v.  James,  1  Humph.  325  ;  Kay  v.  Curd,  6  B.  Mon.  103.  In  a 
contract  for  a  lease,  the  memorandum  must  show  the  length  of  the  letting — i.  e., 
the  term,  and  the  want  of  it  cannot  be  supplied  by  parol  evidence.  Clinan  v. 
Cooke,  1  Sch.  &  Lef  22;  Fitz  Maurice  v.  Bayley,  3  L.  T.  (N.  S.)  69;  Farwell  v. 
Mather,  10  Allen,  322  ;  Hurley  v.  Brown,  98  Mass.  545  ;  Hodges  v.  Howard,  5  R. 
I.  149  ;  Abeel  v.  Radcliff,  13  Johns.  300.  A  description  of  the  land  which  enables 
it  to  be  clearly  identified,  is  enough  ;  for  example,  describing  it  as  the  vendor's 
right  in  a  particulai-  estate.  Nichols  v.  Johnson,  10  Conn.  198  ;  Phillips  v.  Hooker, 
Phil.  Eq.  (N.  C.)  193  ;  or  land  which  the  vendor  had  bought  frona  a  designated 
pei'son.  Atwood  v.  Cobb,  16  Pick.  230 ;  and  see  Simmons  v.  Spruill,  3  Jones'  Eq. 
(N.  C.)  9.  The  following  are  cases  of  memoranda  held  either  sufficient  or  insffi- 
cient :  Grace  v.  Denison,  114  Mass.  IG  ;  a  written  agreement  to  convey  land  "for 
$25,000,  and  mortgage  to  remain  at  five  per  cent  for  five  year.s,"  held  too  incom- 
plete to  satisfy  the  statute.  Matteson  v.  Scofield,  27  Wis.  671,  an  offer  in  a  letter, 
accepted  by  the  vendee,  to  sell  certain  land  for  §3,200,  $1,000  down,  and  $500 
annually,  with  interest,  the  amount  unpaid  to  be  secui-ed  by  a  mortgage,  held 
sufficient.  White  v.  Herman,  51  111.  243,  a  description  of  the  land  is  sufficient,  if 
it  enables  a  surveyor  to  locate  the  tract  intended  to  be  sold.  Whelan  v,  Sullivan, 
102  Mass.  204  ;  but  such  description  is  insufficient,  if  it  gives  no  means  of  identi- 
fying the  boundaries  of  the  land  sold.  McGuire  v.  Stevens,  42  Miss.  724 ;  a 
receipt,  reciting  that  the  money  was  paid  for  a  lot  of  land,  but  giving  no  terms  of 
the  contract,  does  not  constitute  a  memorandum.  Hudson  v.  King,  2  Heisk.  560 ; 
a  memoi-andum  showing  only  the  different  tracts  sold,  to  whom,  and  the  prices, 
is  insufficient.  Heydock  v.  Stow,  40  N.  Y.  363  ;  a  written  instrument,  signed  by 
the  owner,  authoi-izing  a  real  estate  broker  to  sell  a  parcel  of  land  upon  certain 
terms  thei-ein  stated,  and  an  agreement  to  purchase  it  upon  those  tei-ms,  sub- 
scribed by  the  vendee,  written  across  the  face  of  the  instrument  while  unrevoked 
in  the  hands  of  the  broker,  do  not,  either  alone  or  together,  form  a  sufficient 
memorandum  binding  on  the  owner,  nor  does  his  parol  assent,  subsequently 
made,  give  it  any  validity.  Cossett  v.  Hobbs,  56  111.  231 ;  an  owner,  who  had 
authorized  certain  real  estate  brokers  to  sell  a  piece  of  land,  wrote  on  the  back  of 
one  of  their  business  cards  a  short  description  of  the  property  and  his  terms,  and 
signed  it ;  on  the  same  card,  a  purchaser  wrote,  "  your  terms  are  accepted,"  and 
sig-ned  it.  Held,  that  these  constituted  a  memorandum.  This  latter  decision  cer- 
tainly accords  \\ith  the  spirit  of  the  statute,  and  with  the  cases  defining  the  gen- 
eral requisites  of  the  memorandum  much  better  than  the  decision  immediately 
preceding  does.  The  memorandum  need  not  be  an  elaborate  and  perfected 
agreement.  In  the  N.  Y.  case  there  was  an  offer  by  the  vendor,  signed  by  him, 
and,  while  it  was  unrevoked,  it  was  accepted  by  the  vendee.  What  more  is 
necessary  to  constitute  a  contract  ?  Holmes  v.  Evans,  48  Miss.  247  ;  a  receipt  for 
$100,  "  part  payment  on  a  piece  of  pro]ierty,  on  corner  of  Main  and  Pearl  streets, 
city  of  Natchez,  State  of  Mississippi,"  held  insufficient.  Ross  v.  Baker,  72  Pa.  St. 
186  ;  a  purchaser  bought  by  parol,  and  took  a  receipt  for  the  purchase-money, 

134 


MEMORANDUM  RKqUIIiED    BY  STATUTE.  131 

subject-matter  ;  and  all  technical  terms  and  other  phrases  used  in  a 
special  sense,  may  be  thus,  as  it  were,  translated.  But  if,  by  this 
means,  the  subject-matter  is  not  certainly  ascertained,  parol  evidence 
cannot  be  used  to  go  farther,  and  actually  supply  a  siilistantive  part 
of  the  agreement,  which  has  been  entirely  omitted  from  the  memo- 
randum or  insuflBiciently  expressed.  It  is  enough  that  the  subject-mat- 
ter is  sxbstaiitiaJ///  stated,  and  that  no  material  j)ortion  of  it  is  left  to 
be  wholly  supplied  by  parol  evidence ;  it  need  not  be  set  forth,  with 
all  its  details,  with  perfect,  exhaustive  accuracy,  and  this  limitation 
applies  w4th  equal  force  to  all  the  other  terms  of  the  contract,  the 
promises,  and  the  consideration, (1)     The  description  of  the  subject- 

which  stated  the  amount  paid  to  be  for  "the  Fleming-  farm,  French  Ci-eek  ; '• 
held  to  be  a  sufhciont  description.  Spangler  v.  Danforth,  05  111.  102;  a  letter 
from  the  vendor  to  his  own  agent,  stating  that  the  vendee  had  ''agreed  to  take 
the  pasture  lot  for  ."^=2,400,  ;?1,000  cash,  $400  December  first,  1871,  at  ten  per  cent, 
and  Jl,000  July  first,  1872,  at  ten  per  cent,  secured  l)y  mortgage,"  and  directing 
the  agent  to  "  make  out  the  papers,"  and  acknowledging  the  receipt  of  $20  ;  held 
to  be  a  good  memorandum.  To  the  same  effect  is  Moss  i\  Atkinson,  44  Cal.  3,  Itj ; 
a  letter  by  owner  of  land.  P.,  addressed  to  one  M.,  stating  that  he  had  agreed  with 
the  purchaser  H.,  to  sell  H.  the  land,  and  giving  the  terms  of  the  agreement  ami 
the  price,  and  describing  the  land  as  "the  land  now  claimed  by  him.  P.,  on  Dry 
Creek,  some  200  acres  of  bottom  land,  and  700  acres  of  upland,"  was  held  to  con- 
stitute a  valid  memorandum  under  the  statute.  Mead  v.  Pai-ker,  115  Mass.  413  ; 
the  description,  in  a  contract  of  sale,  "a  house  on  Church  sti-eet,"  held  sufficient, 
and  parol  evidence  admissible  for  purpose  of  identification.  Riley  i\  Fai-nsworth, 
116  Mass.  223  ;  a  memorandum  of  a  sale  at  au(;tion,  which  stated  the  parties, 
price,  description  of  the  subject-matter,  and  the  fact  of  a  part  jjayment.  but  did 
not  contain  the  " conditions  of  sale,"  which,  it  said,  "the  vendor  shall  in  all 
respects  fulfill,"  was  held  to  be  insufficient.  If  these  conditions  of  sale  were 
written  on  a  sepai-ate  paper  or  jii-inted,  then  this  decision  is  clearly  erroneous, 
and  in  direct  conflict  with  the  imiversal  practice  in  England,  and  with  all  the 
cases  which  hold  that  the  memorandum  may  be  completed  by  another  paper,  to 
which  reference  is  made.  Here  there  was  a  plain  reference  to  such  conditions,  if 
they  were  on  a  sepai-ate  paper.  If  the  conditions  wei-e  verbal,  the  decision  is  as 
clearly  correct.  Vassault  v.  Edwards,  43  Cal.  458,462.  An  offer  to  sell  land  was 
written  and  signed  by  the  vendor,  the  defendant,  and  stated  that  he  had  sohl  to 
the  purchaser,  the  plaintiff,  the  land  for  $4, .500,  and  had  received  $")0  in  part 
payment,  and  added  :  "This  sale  is  subject  to  a  search  of,  and  approval  of  the 
title,  and  if  the  title  is  i-ejected  or  [as]  bad,  I  agree  to  refund  to  the  said  V.  (the 
vendee)  the  .SoO  paid  on  account ;  but  if  the  title  be  approved,  I  agree  to  convey 
the  above  pi-emises  to  the  said  V.  on  receiving  the  balance  of  the  jnirchase-money 
as  above.  And  I  hereby  allow  to  the  said  V.  twenty  days  for  the  examination  of 
the  title."  This  of!er,  on  being  accepted  by  the  purchaser,  was  held  to  constitute 
a  valid  contract. 

(1)  Ives  i\  Hazard,  4  R.  I.  14.  An  estate,  upon  which  certain  annuities  were 
charged,  was  sold  subject  to  them.  A  memorandum  which,  in  describing  the 
estate,  mentioned  the  annuities,  and  st.ated  the  time  when  their  jiayment  by  the 
purchaser  was  to  l)egin,  but  did  not  specify  the  particulars  in  relation  to  them, 
was  held  sufficient.  ,  .,_ 

IJO 


132  SPECIFIC  peufohmanck  of  coxtkacts. 

matter  may  be  wholly  or  partially  contained  in  an  auxiliary  writing, 
which,  if  referred  to  in  such  a  manner  as  to  establish  tlie  connection, 
becomes  a  constituent  i)art  of  the  memorandum  ;  or  tlie  accomitauyiny- 
document  may  be  simultaneously  with  the  memoranduin  signed,  or 
otherwise  authenticated  by  the  parties,  so  as  to  sliow  that  the  two  are 
to  be  taken  together  and  to  form  one  agreement.(l)  But  advertise- 
ments, hand-bills,  notices,  or  other  writings,  used  at  or  before  the 
sale,  cannot  be  used  to  control  or  affect  the  description  contained  in 
the  agreement,  unless  they  are  thus  connected  and  virtually  adopted 
by  a  reference  or  a  simultaneous  execution. (2) 

The  promises. 

Sec.  91.  In  like  manner  the  promises  of  both  the  parties,  so  far 
as  they  are  executory,  must  all  be  included  in  the  memorandum-^ 
whether  it  be  one  or  more  writings — so  that  parol  evidence  shall 
not  be  necessary  to  ascertain  anything  which  the  parties  have 
undertaken  to  do  or  to  omit.  Every  written  contract  pre-supposes 
a  prior  verbal  agreement  which  it  embodies — in  fact,  the  waiting  is 
the  evidence  of  the  agreement,  and  not  the  essence  of  it.  The  mem 
orandum,  in  order  to  satisfy  the  statute  of  frauds,  must  contain  all 
the  stipulations  and  undertakings  of  the  verbal  bargain.  If  any 
of  these  stipulations  are  omitted,  then  the  memorandum — althougli 
the  parts  which  it  does  contain  might,  by  themselves,  make  a  com- 
plete contract — is  not  a  note  or  memorandum  of  the  agreement  as  re- 
quired by  the  statute,  and  cannot  be  enforced  at  law  or  in  equity.(8) 

(1)  Nene  Valley  Drainage  Conim'rs  v.  Dunkley,  L.  R.  4  Ch.  D.  1.  Suit  by  vendors 
for  a  specific  performance.  The  commissioners  agreed  to  sell  certain  property  to 
D.  The  agreement  did  not  refer  to  any  plan,  but  the  agents  who  signed  it  for  the 
parties  at  the  same  time  signed  the  following  memorandum,  written  upon  a  plan 
of  the  property:  "Plan  of  property  sold  to  and  purchased  by  D.,  Oct.  22,  1874. 
N.  B.,  the  property  included  in  the  purchase  is  edged  with  red  color."  Held, 
that  the  plan  was  sufficiently  incorporated,  and  the  description  in  the  agreement 
was  controlled  by  it— by  Jessel,  M.  R.,  and  by  the  Court  of  Appeals. 

(2)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22 ;  O'Donnell  v.  Leman,  43  Me.  158. 

(3)  Jervis  v.  Berridge,  L.  R.  8  Ch.  351 ;  McLean  ■».  Nicoll,  7  H.  &  N.  1024. 
The  parties  made  a  verbal  agreement  for  the  sale  of  some  goods ;  a  writing  was 
aftei-ward  signed  which  omitted  one  of  the  collateral  stipulations,  and  the  court 
held  that  there  was  no  sufficient  memorandum  to  bind  the  defendant.  Jervis  v. 
Berridge,  siqjra,  is  directly  in  point.  Plaintiff  agreed  to  buy  an  estate  from  the 
L.  Society,  and  to  pay  a  deposit  on  signiner  the  contract.  Before  signing  plaintiff 
verbally  agreed  with  Bei-ridge  to  assign  the  contract  to  him  on  certain  terms. 
Plaintiff  thereupon  gave  B.  a  written  memorandum  assigning  the  contract  to  him 
in  consideration  of  his  paying  the  deposit  to  the  L.  Society,  and  agi-eeing  to  pay 
a  certain  sum  to  the  plaintiff ;  the  other  terms  of  the  verbal  bargain  between  B. 
and  the  plaintiff,  which  were  favorable  to  the  plaintiff,  were  at  B's.  retpiest  omitted 
from  this  written  memorandum.  The  contract  between  plaintiff  and  the  L. 
Society  was   then  signed,  and  the  plaintiff's  copy  delivered  to  B.  who  i)aid  the 

136 


MEMORANHr.V  nEQUIRED    liV  STATUTK.  183 

In  a  contract  of  sale,  when  a  crfMlit  is  stipulated  for  as  part  of  tne 
agreement,  the  rule  is  well  settled  at  law  that  this  is  a  material  term 
of  the  agreement,  aud  must  be  stated  in  tlit^  mem(iraii(lum.(l)  But 
this  does  not  seem  to  have  been  rt>garde<l  as  essential  l)y  courts  of 
equity  in  suits  for  a  specific  performance. (2)  Tlie  time  and  i)lace  of 
performance  are  not  necessary  terras  of  a  valid  memorandum,  because 
in  their  absence  the  Itiw  supi)lies  these  by  its  imjilication ;  {'.\)  but 
where  a  time  for  performance  has  been  expressly  agreed  upon  as  a 
part  of  the  contract  and  thus  made  a  condition,  it  must  appear  as  a 
constituent  part  of  the  memorandum. (4) 
The  consideration. 

Sec.  92.  That  the  consideration  is  a  part  of  the  agreement 
and  must  be  included  in  the  memorandum,  was  long  ago  settled 
in  England,  and  the  doctrine  has  been  followed  in  many  American 
states  whose  statutes  are  sinular  in  form  to  the  English;  in  others 
it  has  been  repudiated.  In  a  large  number  of  the  states,  however, 
the  question  has  been  put  at  rest  by  a  change  iu  the  statutory 
language  ;    in  some,  by  a  provision  expressly  requiring  the  consid- 

deposit.  B.  afterward  repudiated  all  the  stipulations  of  his  verbal  agi-eeuient 
with  the  plaintiff  which  had  not  been  inserted  in  the  menioi-andum.  Plaintiff 
thereupon  commenced  this  suit  ag-ainst  B.  and  the  Loan  Society,  seeking  to  have 
the  agreement  between  B.  and  himself  declared  rescinded,  and  a  conveyance  to 
himself  from  the  L.  Society  in  pursuance  of  his  contract  with  it.  Held,  attii-ming 
V.  C.  Malixs,  that  the  memorandum  was  only  ancnllary  to  the  verbal  bargain 
between  B.  and  the  plaintiff,  and  any  use  of  it  by  B.  for  a  jiurpose  inconsistent 
with  that  bargain  was  fraudulent  ;  as  B.  had  repudiated  the  vei-bal  agreement, 
the  plaintiff  could  fall  back  on  his  original  rights  under  his  agreement  with  the 
L.  Society.  Here  the  defendant  B.  was  not  bound  by  the  verbal  terms  of  his 
agi-eement  because  they  wei-e  not  written.  On  the  other,  hand  the  plaintiff  was 
not  bound  by  the  written  memorandum,  because  it  did  not  include  all  the  teriius  of 
his  iierhal  agreement  with  B.  ;  and  this  was  so  held,  although  the  memorandum 
taken  by  itself  had  all  the  elements  of  a  perfect,  certain,  and  complete  contract, 
and  the  omitted  terms  were  not  left  out  by  mistake  or  througli  fraud,  but  by 
design. 

(1)  Buck  V.  Pickwell,  1  Will.  (Vt.)  1G7  ;  Morton  v.  Dean,  13  Mete.  388;  Davis 
V.  Shields,  26  Wend.  341  ;  Wright  v.  Weeks.  3  Bosw.  372  ;  McFarson's  Appeal,  11 
Pa.  St.  503  ;  Soles  v.  Hickman,  20  Pa.  St.  180  ;  Elfe  v.  Gadsden,  2  Rich.  373  ;  Ellis 
V.  Dead  man,  4  Bibb,  467. 

(2)  See  Smith  v.  Jones,  7  Leigh,  16.5.  It  is  difficult  to  see  any  grounds  for  tliis 
distinction  between  the  two  courts.  Credit  would  appear  to  be  a  verj-  materijd 
term,  unless,  indeed,  the  time  had  expii-ed  before  the  suit  was  brought,  and  the 
]ilaintiff  showed  a  performance  or  i-eadiness  to  perfoi-m  on  his  part,  in  which  cjish 
the  credit  would  no  longei"  be  a  matter  of  consequence. 

(3)  Atwood  V.  Cobb,  16  Pick.  230;  Salmon  Falls  Maunf.  Co.  v.  (ioddard.  14 
How.  446;  [Lamb  \i  Hinman,  46  Mich.  112.  Sec;,  al.so,  Veith  (;.  McMurtry,  26 
Neb.  341;  Angel  v   Simpson  (Ala.),  3  South  Rep.  758]. 

(4)  Davis  V.  Shields,  26  Wend.  341  ;  reversing  S.  C.  24  Wend.  322  ;  First  15:iptLst 
Church  of  Ithaca  v.  Bigelow,  16  Wend.  28. 

i:?7 


134  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

eration  to  be  mentioned ;  in  the  others,  by  a  clause  expressly  declaring 
that  the  consideration  need  not  be  mentioned.  The  doubt  as  to  the 
construction  and  the  conflict  among  American  decisions,  have  chiefly 
arisen  upon  other  clauses  of  the  statute  than  those  which  relate  to 
contracts  concerning  lauds,  and  to  other  agreements  which  may  be 
specifically  enforced.  I  shall  not,  therefore,  enter  into  a  discussion 
which  would  necessarily  be  long  and  actually  foreign  to  the  purposes 
of  this  work.  Practically,  the  question  as  to  stating  the  consideration 
is  of  little  importance  in  connection  with  the  specific  enforcement  of 
contracts,  as  will  appear  from  the  next  paragraph. (1) 
The  price. 

Sec.  93.  There  is  a  plain  distinction  between  the  "consideration" 
as  an  essential  part  of  and  included  in  the  "  agreement,"  and 
especially  agreements  to  answer  for  the  debt  of  another  and  the 
like,  and  the  "  price "  which  must,  in  general,  be  a  material  term 
of  an  executory  contract  of  sale  or  leasing,  whether  the  subject- 
matter  be  land  or  chattels. (2)  It  is,  of  course,  possible  that  there 
should  be  a  contract  of  sale  without  any  price  being  expressly 
stipulated,  and  where  the  law  would  imply  that  the  purchaser  was  to 
pay  a  reasonable  or  the  market  price  for  the  article  bought ;  and  such 
forms  of  contract  are  not  very  uimsual  in  the  sale  of  chattels.  It  is 
difiicult,  however,  to  conceive  of  a  contract  of  sale  or  leasing  which 
would  be  specifically  enforced  in  equity,  in  which  the  price  would  not 
be  a  material  term,  and  in  the  memorandum  of  which  such  price, 
unless  already  paid,  should  not  necessarily  be  stated  in  order  to  satisfy 
the  rules  hereinbefore  laid  down.  It  is,  also,  difficult  to  conceive  of  a 
contract  based  upon  "  the  consideration  of  marriage,"  which  could 
be  specifically  enforced,  in  the  memorandum  of  which  such  considera- 
tion would  not  necessarily  appear.  The  result  is  very  clear  that  the 
questions  and  disputes  as  to  the  necessity  of  expressing  the  consid- 
eration, are  of  very  little  practical  importance  in  connection  with  the 
doctrine  of  specific  performance.  In  the  vast  majority  of  contracts 
which  are  specifically  performed  by  courts  of  equity,  the  price,  and 
therefore  the  consideration,  will  be  a  material  term  of  the  agreement 
and  must  appear  in  the  memorandum,  which  would  be  incomplete 
without  such  statement. 

Sec.  94.  It  is,  therefore,  well-settled  that  in  all  executory  contracts 

(1)  For  the  statutory  provisions  on  the  subject  of  consideration,  see  the  abstract 
of  statutes,  ante,  §  70 ;  and  for  a  full  discussion  of  the  subject,  see  Browne  on 
Stat,  of  Frauds,  §§  881,  381a,  886-408rt,  especially  391. 

(2)  This  di^stinction  is  clearly  pointed  out  by  Mr.  Browne  in  the  passages  of  his 
work  referied  to  in  the  last  note. 

138 


MEMORASDUM   JihQUlRKD    BV  STATUTE.  135 

of  sale  or  of  leasing,  where  the  parties  have  agreed  upon  a  price,  such 
price  is  a  material  term  of  the  contract,  and  must  be  sutiiciently 
stated  in  the  niom()r;in(linu.(l)  Of  course  a  valid  contract  of  sale  may 
be  made  without  any  stii)ulation  whatever  as  to  price,  because  the  law 
then  supplies  the  term  by  im})lying  the  reasonable  value  of  the  prop- 
erty as  the  price ;  and  in  such  a  case  the  memorandum  may  be  as 
silent  as  the  parties  were. (2)  It  is  not  necessary  tliat  either  tlie  con- 
tract or  the  memorandum  should  fix  upon  and  state  the  price  in  a 
definite  and  ascertained  sum  ;  it  is  always  enougli  that  the  parties 
have  provided  a  means,  and  have  expressed  such  provision  in  the 
memorandum,  whereby  the  price  can  be  definitely  ascertained  either 
by  the  acts  of  third  persons  or  by  evidence  operating  by  way  of  refer- 
ence or  identification.  For  examples,  it  is  enough  if  the  agreement 
and  memorandum  state  that  the  price  is  to  be  determined  by  valuers 
or  arbitrators ;  (3)  or  is  to  be  the  same  as  that  for  which  the  subject- 
matter  had  been  bought  at  a  former  sale. (4)  If  it  appears  from  the 
memorandum  that  the  price  has  been  paid  or  received,  the  amount 
thereof  need  not  be  set  forth,  since  that  term  of  the  contract  having 
been  already  performed,  is  no  longer  material. (5)  Parol  evidence  is 
always  admissible  to  explain  the  technical  ambiguous  terms — which 
are  very  common  in  mercantile  contracts — used  by  the  parties  to 
designate  the  price. (6) 

Sec.  95.  A  verbal  ante-nuptial  agreement  to  make  a  settlement 
would,  of  course,  be  nugatory,  because,  as  will  be  subsequently  shown, 

(1)  Clerk  V.  Wright,  1  Atk.  12;  Bromley  v.  Jeifries,  2  Vera.  41.') ;  Blag-den  v. 
Bradbear,  12  Ves.  466  ;  Pre.ston  v.  Merceau,  2  W.  Bl.  1249  ;  Powell  v.  Lovegrove, 
39  Eng.  L.  &  Eq.  427 ;  Ide  v.  Stanton,  If)  Yt.  691 ;  Buck  v.  Pickwell,  1  Will.  (Vt.) 
167;  Ives  v.  Hazard,  4  R.  J  14;  Smith  v.  Arnold,  5  Mason,  416;  McFarsonV. 
Appeal,  11  Pa,  St.  503;  Soles  v.  Hickman,  24  Pa.  St.  ISO;  Kay  v.  Kurd.  6  B. 
Monr.  103;  Parker  u  Bodley,  4  Bibb.  102  ;  Ellis  t).  Deadman,  4  Bibb.  467  ;  Kinloch 
V.  Savage,  1  Speer's  Eq.  471 ;  Wright  v.  Cobb,  5  Sneed,  143  ;  Sheid  v.  Stamps.  2 
Sneed,  172  ;  Farwell  v.  Lowther,  18  111.  2.52  ;  Barickman  v.  Kuykendall,  6  Blackf. 
21  ;  [Phillips  v.  Adams,  70  Ala.  373  ;  Webster  v.  Brown,  67  Mich.  328  ;  Smoyer  v. 
Roth  (Pa.),  13  Atl.  Rep.  191  ;  Weaver  v.  Shenk,  1.^)4  Pa.  St.  206  ;  Bui-khalter  v. 
Jones,  32  Kan.  5;  Pitt  u  Moore,  99  N.  C.  85  ;  Ringer -».  Iloltzclaw,  112  Mo.  519; 
Shipma.n  v.  Campbell  (Mich  ),  44  N.  W.  Rep.  171].  "NVIien  the  price  is  thus  stated 
a  different  one  cannot  be  jiroved  by  jiarol.  Preston  v.  Mer(;eaii,  2  W.  Bl.  1249; 
but,  ijer  contra,  Bean  v.  Valle,  2  Mo.  103 ;  and  see  cases  cite<l  under  §  148. 

(2)  Hoadley  v.  McLaine,  10  Bing.  482. 

(3)  Cooth  V.  Jackson,  6  Ves.  12  ;  Brown  v.  Bellows,  4  Pick.  189.  In  regard  to 
the  enforcement  of  contracts  which  provide  for  the  price  to  be  fixed  by  valuei-s, 
see  post,  §  309,  and  cases  cited  thei-eunder. 

(4)  Atwood  V.  Cobb,  16  Pi(;k.  230  ;  Johnson  v.  Ronald,  4  Munf.  77. 

(5)  Holman  v.  Bank  of  Norfolk,  12  Ala.  369  ;  Fugate  v.  Hansford,  3  Litt.  262 ; 
[Sayward  i\  Gai-dner,  5  Wash.  St.  247]. 

(6)  Salmon  Falls  Manuf,  Co.  v.  Goddar<l,  14  How.  446  ;  Marshall  v.  LjTin,  6 
M.  &  W.  109,  per  Pakkk,  B.  ;  Sari  v.  Bourdillon,  1  C.  B.  (N.  S.)  188;  Spicei-  r. 
Coopci-.  1  Gale  &  Dav.  .52 ;  5  Jnr.  1036 ;  [Mann  v.  Higgins,  83  Cal.  66]. 

139 


136  SPECIFIC    I'ERFORMAXCE    OF  CONTRACTS. 

marriage  is  not  a  suflicient  part  performance ;  but  when  there  has 
been  such  a  verbal  ante-nuptial  agreement,  a  written  contract  or 
settlement  in  pursuance  or  upon  the  basis  of  it,  made  after  the  mar- 
riage, is  valid  and  will  be  enforced. (1)  But  such  subsequent  agree- 
ment or  settleuient  nuiy  not  be  upheld  against  intervening  creditors, 
whose  rights  it  would  cut  off'.(2) 
Part  performance. 

Sec.  96.  As  has  already  been  shown, (8)  equity  will  sometimes 
decree  the  specific  execution  of  agreements  for  the  breach  of  which 
the  law  can  give  no  remedy,  because  the  statute  of  frauds  inter- 
poses an  insuperable  obstacle  to  the  recovery  of  a  legal  judgment  for 
damages.  The  doctrine  was  established  at  an  early  day  in  Eng- 
land that  a  verbal  agreement,  if  part  performed,  can,  notwith- 
standing the  requirements  of  the  statute,  be  enforced  by  a  court 
of  equity ;  or,  to  use  the  technical  language  of  the  books,  that  part 
performance  takes  a  verbal  agi'eement  out  from  the  operation  of  the 
statute. (4)  This  doctrine  has  been  fully  adopted  in  nearly  all  the 
American  states,  although  the  legislatures  in  several  of  them  have 
materially  altered  the  language  of  the  act  by  declaring  that  the  con- 
tract shall  be  "void,"  instead  of  providing  that  "no  action  shall  be 
maintained  "  upon  it,  in  the  absence  of  a  written  memorandum. (5) 

(1)  Montacute  v.  Maxwell,  1  P.  Wms.  618  ;  Stra.  236  ;  Hammersley  v.  Du  Biel,  12 
CI.  &  Fin.  4.5,  64  n.  ;  Taylor  v.  Beech,  1  Ves.  Sen.  297  ;  Surcoine  v.  Pinniger,  3  DeG, 
M.  &  G.  575  ;  Barkworth  v.  Young,  4  Drew.  1  ;  Argenbright  v.  Campbell,  3  Hen. 
&  M.  144  ;  Albert  v.  Winn,  5  Md.  66 ;  Satterthwaite  v.  Emley,  3  Green.  Ch.  489  ; 
Livingston  v.  Livingston,  2  Johns.  Ch.  537  ;  in  Randall  v.  Morgan,  12  Ves.  67, 
Sir  Wm.  Grant  intimated  a  contrary  opinion. 

(2)  Reade  v.  Livingston,  3  Johns.  Ch.  481  ;  Winn  v.  Albert,  2  Md.  Ch.  169  ;  5 
Md.  66  ;  Izard  v.  Izard,  Bailey  Eq.  236 ;  Andrews  v.  Jones,  10  Ala.  400 ;  Blow  v. 
Maynard,  2  Leigh,  29  ;  Smith  v.  Greer,  3  Humph.  118 ;  Wood  v.  Savage,  2  Doug. 
(Mich.)  316  ;  Borst  v.  Cory,  16  Barb.  136  ;  Randall  v.  Moi-gan,  12  Ves.  67  ;  Bat- 
tersbee  v.  Farrington,  1  Sw.  106 ;  pe/-  contra,  see  Dundas  v.  Dutens,  1  Ves.  196  ; 
Satterthwaite  \i.  Emley,  3  Green.  Ch.  489. 

(3)  See  ante,  §  30. 

(4)  The  earliest  reported  case  was  decided  by  the  House  of  Lords,  April  7,  1701. 
Lester  v.  Foxci-oft,  1  Colles's  Par.  Cas,  108  ;  also  cited  sub.  nam.  Foxcroft  v.  Lys- 
ter,  2  Vern.  456;  Leicester -y.  Foxcroft,  Pre.  Ch.  519,  526;  Bond  v.  Hopkins,  1 
Sch.  &  Lef.  433 ;  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  41. 

(5)  Newton  v.  Swazey,  8  N.  H.  9,  13 ;  Tilton  v.  Tilton,  9  N.  H.  385,  389 ; 
Annan  v.  Merritt,  13  Conn.  479,  491 ;  Eaton  v.  Whitaker,  18  Conn.  222,  229 ; 
Hall  V.  Whittier,  10  R.  I.  530;  Peckham  v.  Barker,  8  R.  I.  17;  Meach  v. 
Stone,  1  Chip.  (Vt.)  189 ;  Parkhurst  v.  Van  Cortland,  14  Johns.  15,  31 ;  Freeman 
V.  Freeman,  43  N.  Y.  34  ;  Eyre  v.  Eyi-e,  4  C.  E.  Green.  (N.  J.)  102  ;  Welsh  v. 
Bayaud,  6  C.  E.  Gi-een.  (N.  J.)  186  ;  Moore  v.  Small,  19  Pa.  St.  461  ;  Greenlee  t). 
Greenlee,  22  Pa.  St.  225 ;  Allen's  Estate,  1  Watts  &  Serg.  383 ;  Hall  v.  Hall,  1 
Gill.  383,  389 ;  Hamilton  v  Jones,  3  Gill  &  J.  127 ;  Cole  v.  Cole,  41  Md.  301 
{doctrine  applied  t(>  agreement  to  execute  a  mortgage] ;  Semmmes   v.  Worthing- 

140 


J-AKT   I'KRFOIiMAXCK.  187 

In  several  of  the  states  the  doctrine,  although  oiigiuuting  in  e<iiiity, 
has  received  a  statutory  sanction  or  even  basis.  There  are  two  types 
of  these  statutory  provisions.  One  class  recog-nizes  the  doctrine  of 
part  performance  as  enforced  by  courts  of  equity,  and  declares  that 
nothing  in  the  statute  of  frauds  shall  be  construed  so  as  to  interfere 
with  or  abridge  it,  and  thus  leaves  the  subject,  as  it  was  prior  to  the 
legislation,  wholly  wathjn  the  domain  of'equitable  i)rinciples.(l)  The 
statutes  of  the  other  class,  dirtering  from  each  oth(»r  in  their  details, 
agree  in  making  the  doctrine  a  matter  of  legislation.  As  the  section 
concerning  sales  of  personal  i)roperty  requires  either  a  written  memo- 
randum, or  receipt  and  acceptance,  or  payment  by  the  buyer,  so  these 
provisions  concerning  lands  prescribe  a  writing  or  certain  specified 
acts  of  part  performance  in  the  alternative,  as  the  essential  requisites 
of  a  valid  contract, (2)  llow  far,  if  at  all,  these  statutes  have  modified 
the  general  rules  of  equity  relative  to  pirt  performance  in  their 
respective  states  will  be  considered  in  the  sequel. 

Sec.  97.  In  a  few  of  the  states,  either  on  account  of  a  strict  con- 
struction put  upon  the  language  of  their  statutes  of  frauds,  or  by 
reason  of  the  limited  jurisdiction  in  ecpiity  conferred  upon  their 
courts,  the  doctrine  of  part  performance  has  beeii  wholly  rejected,  or 
is  applied  only  to  a  partial  extent  and  under  very  special  circum- 

ton,  38  M(l.  298  ;  Anthony  v.  Leftwich,  3  Rand.  (Va.)  255  ;  Pierce  v.  Catron,  23 
Gi-att.  483;  Lowry  i).  Buffington,  6  W.  Va.  249;  Sites  v.  Kellar,  6  Hamm.  (O.) 
207  ;  Grant  v.  Ramsay,  7  Ohio  St.  157  ;  Underhill  v.  Williams,  7  Blackf.  125  ; 
School  District  v.  Macloon,  4  Wise.  79  ;  Farrar  v.  Patton,  20  Mo.  81  ;  Despain  v. 
Carter,  21  Mo.  331 ;  Feuiser  v.  Sneath,  3  Nev.  120  ;  Church  of  the  Advent  v.  Far- 
row, 7  Rich.  Eq.  378 ;  Ford  v.  Finney,  35  Geo.  258  ;  Dugan  v.  Colville,  8  Tex. 
126  ;  Boze  v.  Davis,  14  Tex.  331  ;  Howe  v.  Rogers,  32  Tex.  218 ;  Clayton  v.  Fra- 
zier,  33  Tex.  91  ;  Johnson  v.  Bowden,  37  Tex.  621  ;  Gregg  v.  Hamilton,  12  Kans. 
333  ;  Morgan  v.  Bergen,  3  Neb.  209  ;  Fall  v.  Hazelrigg,  45  Ind.  576 ;  Northrup 
V.  Boone  66  III.  368  ;  [Olisey  ?>.  Fi.sher,  34  Ch.  D.  367  ;  Reynolds  v.  Necessary 
(Va.),  13  S.  E.  Rep.  348  ;  Williams  v.  Morris,  95  U.  S.  444]. 

(1)  See  ante,  §  70,  in  the  statutes  of  N.  Y.  ;  Mi(;h.  ;  Minn.  ;  Neb.  ;  Wise.  ;  Ind. 

(2)  See  ante,  §  70,  in  the  statutes  of  Alabama,  which  rec^uires  the  contract 
for  sale  of  lands,  etc.,  to  be  written,  etc.,  "unless  the  purchase-money  or  a. 
portion  thei-eof  be;  paid,  and  the  ])urchaser  be  put  in  jiossession  of  the  land  by 
the  seller."  [As  interpreting  this  statute,  see  Hortin  v.  Milton,  69  Ala.  354; 
McLure  v.  Tennille,  80  Ala.  572  ;  Tranunell  v.  Craddock  (Ala.),  13  So.  911 ;  Louis- 
ville &  N.  R.  Co.  V.  Philyaw  (Ala.),  ]0  So.  83 ;  Hughes  v.  Hatchett,  55  Ala.  539.] 
Ca/{/br?i<a,  which  ]'e<iuires  a  writing,  etc.,  "imless  the  contract  has  been  part 
performed  l)y  the  jiarty  seeking  to  enforce  it,  and  such  part  performance  has 
been  accoj^ted  by  the  other."  Icnca,  which  enacts  that  the  re(piiremt'nt  of  a 
writing  does  not  apjjly  "when  the  ])urchase-money  or  any  part  thereof  has  been 
received  by  the  vendor,  or  when  the  vendee,  with  fli<'  nctu.al  or  implied  consent 
of  the  vendor,  has  taken  and  hold  possession  tlii-rcdf  (/.  c,  of  the  land),  under 
and  by  virtue  of  the  conti-act,  t/r  when  IIhmc  1;  uny  (iUum-  <:ircumstance  which, 
by  the  law  heretofore  in  force,  would  hue  taken  a  case  out  of  the  statute  of 
frauds."  Also,  that  a  parol  contra('t  sliall  Ik-  enforced  when  not  denied  in  the 
pleadings,  excejit  against  :i  imtsoh  other  than  the  makei-  of  it. 

141 


138  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

stances.  In  Massachusetts  the  courts  long  had  the  power  of  enforcing 
written  contracts  alone  ;(1)  but  by  recent  legislation  their  equitable 
jurisdiction  has  been  enlarged  so  as  to  embrace  some  cases,  at  least, 
of  parol  agreements  which  have  been  part  performed. (2)  In  Maine, 
also,  the  equity  powers  of  the  courts  are  restricted  to  the  enforcement 
of  written  contracts. (3)  In  North  Carolina  the  equitable  doctrine  of 
part  performance  has  never  been  admitted,  and  in  case  of  a  verbal 
contract,  even  if  it  be  admitted  by  the  defendant,  provided  he  claims 
the  benefit  of  the  statute,  the  remedy  of  specific  execution  is 
refused. (4)  The  rule  that  parol  contracts,  which  have  been  part 
performed,  may  be  specifically  enforced,  has  also  been  repudiated  in 
Tennessee  as  being  wholly  inconsistent  with  the  statute  of  frauds  ;(5) 
and  is  only  admitted  in  Kentucky  under  special  circumstances  of 
hardship  or  injustice  to  the  purchaser.(6) 

Sec.  98.  This  doctrine  of  part  performance,  that  verbal  contracts, 
embraced  within  the  restrictive  provisions  of  the  statute  of  frauds, 
may  still  be  enforced  when  they  have  been  part  performed,  belongs 
exclusively  to  equity  jurisprudence  and  jurisdiction  ;  it  has  no  exist- 
ence at  law,  and  is,  therefore,  never   admitted  in  legal  actions.(7) 

(1)  Jacobs  V.  R.  R.  Co.,  8  Cush.  223;  Brooks  v.  Wheelock,  11  Pick.  439  ;  Dwight 
V.  Pomeroy,  17  Mass.  303,  327 ;  Buck  v.  Dowley,  16  Gray,  555. 

(2)  Metcalf  ■«.  Putnam,  9  Allen,  97  ;  Glass  v.  Hulbei-t,  102  Mass.  25,  33  ;  Stock- 
hana  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45  ;  Potter  ^1.  Jacobs,  111  Mass.  32. 

(3)  Power  is  given  by  statute  to  compel  "  specific  performance  of  contracts  in 
writing,"  and  it  is  held  that,  in  the  face  of  this  provision,  the  general  grant  of 
jurisdiction  in  all  cases  of  "fraud,  trust,  accident,  and  mistake,"  could  not  be 
made  to  include  the  specific  enforcement  of  parol  contracts  which  have  been  part 
performed.  "Wilton  v.  Harwood,  23  Me.  131,  134 ;  Bubier  v.  Bubier,  24  Me.  42 ; 
Stearns  v.  Hubbard,  8  Greenl.  320. 

(4)  This  course  of  decision  is  expressly  based  upon  the  statute  of  frauds ;  the 
rules  established  by  the  English  court  of  chancery,  it  is  asserted,  amount  to  a 
virtual  repeal  of  the  statute,  and  let  in  all  the  opportunities  for  frauds  and 
perjuries,  which  it  was  the  design  of  that  enactment  to  shut  out.  When,  in  such 
a  case,  the  relief  of  specific  pei-formance  is  refused,  the  plaintiff  may,  however, 
recover  the  amount  of  his  payments  and  outlays  for  impi-ovements.  See  Love  v. 
Neilson,  1  Jones'  Eq.  339  ;  Barnes  v.  Teague,  1  Jones'  Eq.  277 ;  Ellis  v.  Ellis,  1 
Dev.  Eq.  345  ;  Allen  v.  Chambers,  4  Ired.  Eq.  125  ;  Dunn  v.  Moore,  3  Ired.  Eq. 
364  ;  Albea  v.  Griffin,  2  Dev.  &  Bat.  Eq.  9  ;  Plummer  r.  Owen,  1  Busbee  Eq.  254  ; 
Barnes  v.  Brown,  71  N.  C.  507,  511,  512,  per  Rodmajt,  J.  [See,  also,  White  v. 
Holly,  91  N.  C.  67 ;  Holmes  v.  Holmes,  86  N.  C.  205,  208  (parol  contract  for  sale 
of  an  equitable  as  well  as  a  legal  estate  void  under  the  statute  of  frauds).] 

(5)  Ridley  v.  McNairy,  2  Humph.  174,  177  ;  Patton  v.  McClure,  Mart.  &  Yerg. 
■333,  and  in  Mississippi,  McGuire  v.  Stevens,  42  Miss.  724  ;  Hairston  v.  Jaudon,  42 
Miss.  380.     [See,  also,  Niles  v.  Davis,  60  Miss.  750.] 

(6)  Worley  v.  Tuggle,  4  Bush,  168,  190.  [See,  also.  Usher's  Exr.  v.  Flood,  83 
Ky.  552 ;  Newberger  v.  Adams,  92  Ky.  27 ;  White  v.  O'Bannon  (Ky.),  5  S.  W. 
Rep.  346  ;  Duncan  v.  Duncan  (Ky.),  18  S.  W.  Rep.  1022.] 

(7)  O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  123  ;  Kelly  v.  Webster,  12  C.  B.  283 ; 
Freepoi-t  v.  Bartol,  3  Greenl.  345;  Patterson  v.  Cunningham,  2  Fairf.  (Me.)  512; 

142 


PART  PEL'FOnyTAyCK.  139 

Although  its  operation  has  doubtless  been  beneficial,  and  the  prin- 
ciples and  rules  upon  which  it  rests  are  firmly  established,  yet  the 
courts  are  careful  not  to  extend  it  to  new  circumstances  or  relations 
not  embraced  within  those  rules  and  principles.  That  the  statute  of 
frauds  is  a  wise  and  politic'enactment,  and  accords  with  the  common 
experience  of  mankind,  is  shown  by  its  adoption  in  nearly  all  the 
states,  and  the  tendency  at  the  present  day  is  strongly  in  favor  of 
sustaining  and  enforcing  its  provisions. (1)     I  shall  arrange  the  further 

Norton  V.  Preston,  15  Me,  14,  16  ;  Lane  ?).  Shackford,  .')  N.  H.  132 ;  Newell  v. 
Newell,  13  Vt.  24  ;  Pike  v.  Morey,  32  Vt.  37  ;  Kidder  d.  Hunt.  1  Pick.  331  ;  Thomp- 
son V  Gould,  20  Pick.  138  ;  Adams  v.  Townsend,  1  Met.  483  ;  Eaton  v.  Whitaker, 
18  Conn.  231;  Downey  v.  Hotchkiss,  2  Day  (Conn.)  22.5;  Jackson  v.  Pierce,  2 
Johns.  221,  223  ;  Abbott  v.  Draper,  4  Denio,  52 ;  Thomas  v.  Dickenson,  14  Barb. 
90  ;  Boutwell  v.  O'Keefe,  32  Barb.  434  ;  Wentworth  v.  Buhler.  3  E.  D.  Smith,  305  ; 
Seymour  v.  Davis,  2  Sandf.  245  ;  Henderson  v.  Hays,  2  Watts  (Pa.)  148  ;  Walter 
«.  Walter,  1  Whart.  (Pa.)  292  ;  Barickman  v.  Kuydendall,  6  Blackf.  22,  24  ;  Sailoi-s 
V.  Gambril,  1  gmith  (Ind.)  82  ;  Hunt  v.  Coe,  15  Iowa,  197  ;  Davis  v.  Moore,  9  Rich. 
215  ;  Payson  v.  West,  1  Walker  (Miss.)  515  ;  Johnson  v.  Hanson,  6  Ala.  351  ;  Allen 
V.  Booker,  2  Stew.  (Ala.)  21  ;  Meredith  v.  Naish,  4  Stew.  &  Poi-t.  (Ala.)  59  ;  [Bart- 
lett  V.  Bartlett  (Mich.),  01  N.  W.  500  (Dec.  22,  1894) ;  Brown  t».  Pollard  (Va.),  l7 
S.  E.  G  ;  Nally  v.  Reading-  (Mo.),  17  S.  W.  978  ;  Dougherty  v.  Catlett  (111.),  21  N. 
E.  Rep.  932 ;  Creighton  v.  Sander.s,  89  111.  543]. 

(1)  Phillips  V.  Edwards,  33Beav.  440  ;  Phillips  v.  Thompson,  1  Johns.  Ch.  132, 
149,  per  Kent,  Ch. :  *'  I  ag-ree  with  those  wise  and  learned  judges  who  have 
declared  that  the  courts  ought  to  make  a  stand  against  any  further  encroachment 
on  the  statute,  and  not  to  go  one  step  beyond  the  rules  and  precedents  ali-eady 
established."  German  v.  Machin,  6  Paige,  289,  293,  per  W.\lworth,  Ch.  :  "The 
beneficial  provisions  of  the  statute  of  frauds  have  been  sufficiently  broken  in  upon 
already,  and  the  doctrine  of  part  perfoi-mance  should  not  be  extended  to  new 
cases  which  do  not  come  clearly  within  the  equitable  principles  of  pi-evious  deci- 
sions." See,  also,  Allen's  Estate,  1  Watts  &  Serg.  383,  388 ;  Frye  v.  Shepler,  7 
Barr.  91.  93 ;  Moore  v.  Small,  7  Harris,  461  ;  Pooi-man  v.  Kilgore,  2  Casey,  365  ; 
Cox  v.  Cox,  2  Casey,  375 ;  Wallace  v.  Brown,  2  Stockt.  Ch.  308  ;  Johnston  v. 
Glancey,  4  Blackf.  94, 99  ;  Massey  v.  Mcllwain,  2  Hill,  Ch.  421,  426  ;  Hood  v.  Bow- 
man, 1  Freeman,  290,  294 ;  Anthony  v.  Leftwich,  3  Rand.  238,  244 ;  Pai-khurst  V. 
Van  Cortlandt,  1  Johns.  Ch.  284,  285  ;  Harnett  «.  Yielding,  2  Sch.  &  Lef.  549 ;  Fos- 
ter u  Hale,  3  Ves.  712,  713,  x>ei"  Loi'd  Alvanley  ;  O'Reilly  v.  Thompson,  2  Cox, 
271  ;  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  4,  5,  7,  per  Lord  Redesd.\le  :  "The  statute 
Was  made  for  the  purpose  of  j)reventing  perjuries  and  frauds  ;  and  nothing  can 
be  more  manifest  to  any  pei-son  who  has  been  in  the  habit  of  practicing  in  coui-ts 
of  equity,  than  that  the  relaxation  of  that  statute  has  been  a  ground  of  much  per- 
jury and  much  fraud.  If  the  statute  had  been  rigoi-ously  observed,  the  result 
would  probably  have  been,  that  few  instances  of  parol  agreeraeuts  would  have 
occurred.  Agreements  would,  from  the  necessity  of  the  case,  have  been  reduced 
to  writing.  Whereas  it  is  manifest  that  the  decisions  on  the  subject  have  opened 
a  new  door  for  fraud,  and  that,  undei"  pretei)(;e  of  part  execution,  if  possession  is 
had  in  any  way  whatsoever,  means  are  fi'equently  found  to  put  a  court  of  equity 
in  such  a  situation  that,  without  departing  from  its  rules,  it  feels  itself  obliged  to 
break  through  the  statute.  It  is,  therefore,  absolutely  necessary  for  courts  of 
equity  to  make  a  .stand,  and  not  to  cany  the  decisions  further."  The  reported 
judgments  of  Lord  Redbsdalb  show  that  he  was  strongly  opposed  to  this  equi-» 
table  doctrine.  143 


140  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

discussion  of  the  subject  in  the  followiug  order :  First.  The  kinds  of 
contracts  to  which  the  doctrine  of  part  performance  is  applied.  Second. 
The  equitable  basis  and  essential  principles  of  the  doctrine.  Third. 
The  particular  acts  which  do  or  do  not  ^•'ount  to  a  sufficient  part 
performance.  Fourth.  The  nature  and,  effect  of  the  evidence  by 
which  the  contract  must  be  proved. 

The  kinds  and  classes  of  contracts  to  which  the  doctrine  of 
part  performance  is  applied. 

Ski'.  99.  First.  As  the  doctrine  of  part  performance  exists  alone 
in  equity,  it  is  plain  that  the  only  agreements  to  which  it  can  be 
applied,  are  those  to  which  equity  would  grant  the  remedy  of 
specific  execution  if  they  were  written.  All  the  conditions  upon 
W'hich  the  right  to  the  equitable  relief  is  based  must  be  fulfilled,  when 
the  agreement  is  verbal  as  much  as  when  it  is  written,  for  the  mere 
absence  of  a  written  memorandum  does  not  of  itself  let  in  the  equi- 
table jurisdiction;  for,  otherwise,  all  contracts  might  be  enforced  in 
equity  if  they  were  unwritten.  The  contract,  therefore,  must  be  one 
for  which  the  legal  remedy  of  damages  would  be  inadequate  or  im- 
practicable, and  for  which  the  equitable  remedy  of  specific  execution 
is  possible. (1)  It  must  be  obligatory  upon  the  parties,  except  so  far 
as  the  absence  of  a  written  memorandum  prevents  its  enforcement  at 
law — obligatory,  that  is,  as  contradistinguished  from  a  mere  honorary 
engagement; (2)  and  must  be  complete  and  certain  in  its  terms.(3) 

Sec.  100.  The  contracts  embraced  in  certain  clauses  of  the  statute 
of  frauds  are  all  pvu'ely  legal  in  their  nature ;  the  legal  remedy  of 
damages  is  always  adequate  ;  and  there  is  no  occasion  or  opportunity 
either  for  the  equitable  relief  of  specific  execution,  or  the  doctrine  of 
part  performance.  These  clauses  are  :  1,  that  relating  to  promises  by 
executors,  etc.,  to  answer  damages  out  of  their  own  estates  ;  2,  that 
relating  to  promises  by  one  person  to  answer  for  the  debt,  default, 

(1)  Kirk  V.  Bromley  Union,  2  Phil.  640  ;  a  contract  for  work  and  labor.  Frame 
V.  Dawson,  14  Ves.  386 ;  Pembroke  v.  Thorpe,  3  Sw.  437 ;  Eckert  v.  Eckert,  3 
Penn.  332  ;  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  273  ;  Armsti-ong-  v.  Katten- 
horn,  11  Ohio,  2G5.     See  ante,  §  30,  note. 

(2)  Lord  Wali)ole  v.  Lord  Orford,  3  Ves.  402  ;  Izard  v.  Middleton,  1  Dessau. 
116  ;  and  for  further  examples  of  honorary  engagements,  see  ante,  §  69. 

(3)  Thynne  v.  Lord  Glengall,  2  H.  L.  Cas.  158,  per  Lord  Brougham  :  "Part  per- 
formance to  take  a  cause  out  of  the  statute  of  frauds  always  supjioses  a  com- 
pleted agreement.  There  can  be  no  part  performance  when  there  is  no  completed 
agreement  in  existence.  It  must  be  obligatory,  and  what  is  done  must  be  under 
the  terms  of  the  agi-eement  and  by  force  of  the  agreement.''  In.  re  Thomas  Ryan, 
3 1.  R.  Eq.  238  ;  [Sutton  v.  Myrick,  39  Ark.  424].  The  subjects  of  completeness  and 
certainty  a.i-e  fully  treated  in  subsequent  sections  of  this  chapter.  The  contract 
mTist  T;e  fair,  jusi,  reasonalile,  mutual,  and  r-ortnin.     Reese  r>.  Reese,  41  Md.  554. 

144 


I'AIiT    I'KliFUIi.nAycK.  141 

etc.,  of  another;  and  8,  similar  provisions  which  arc  adJod  to  the 
statute  in  many  of  the  American  states.  It  lias  ah'oady  been  shown 
that  a  contract  for  the  sale  or  assignment  of  things  in  action,  and 
under  very  special  circumstances  a  contract  for  the  sale  or  ti-ansfer 
of  peculiar  chattels,  may  be  si^ecilically  enforced  in  equity.  Although 
the  equitable  remedy  of  specific  performance  may,  therefore,  be 
api)lied  to  agreements  embraced  witliin  the  clause  of  the  statute 
relat>ing  to  the  sale  of  personal  property,  yot  the  doctrine  of  }iart  per- 
formance cannot  be  so  a})plied.  The  reason  is  obvious.  The  only 
acts  which  could  by  possibility  be  a  part  performance,  ]iayment,  or 
delivery  and  acceptance,  render  the  contract  valid  and  binding  at 
law  ;  these  acts  are  substituted  by  the  statute  in  the  place  of  a  written 
memorandum  ;  and  all  opitortunity  for  resorting  io  the  equitable  doc- 
trine of  part  performance  is  thus  cut  oil".  The  clause  relating  to  con- 
tracts not  to  be  performed  wdthin  a  year  from  the  making  thereof,  seems 
by  its  very  terms,  to  prevent  any  validating  effect  of,  part  performance 
upon  all  agreements  embraced  w'ithin  it.  As  the  prohibition  relates 
not  to  the  subject-matter,  nor  to  the  nature  of  the  undertaking,  but 
to  the  time  of  the  performaiice  itself,  it  seems  impossible  for  any  part 
performance  to  alter  the  relations  of  the  parties,  by  rendering  tlie 
contract  one  which,  by  its  terms,  may  be  performed  within  the  year. 
It  has,  indeed,  been  held  in  some  cases,  that  if  all  the  stipulations  on 
the  part  of  the  plaintiff  are  to  be  performed  within  a  year,  an  action 
will  lie  for  a  breach  of  the  defendant's  promise,  although  it  was  not 
to  be  performed  within  the  year,  and  was  not  in  writing.  In  all 
these  cases,  however,  the  promisa  of  the  defendant  was  simply  for  the 
payment  of  the  money  consideration,  which  might,  in  every  instance, 
have  been  sued  for  and  recovered  upon  his  implied  i)romise;(l)  and 
the  doctrine  itself  has  been  expressly  and  emphatically  repudiated  by 
numerous  other  decisions. (2)  But  even  admitting  this  rule  to  its 
fullest  extent,  it  can  only  apply  to  legal  actions,  and  has  nothing  in 
connuon  with  the  equitable  doctrine  of  part  performance. (3) 

(1)  Uraceg-inlle  v.  Heald,  1  15.  <fc  Aid.  7-7,  jicr  Aniiorr,  .1.  ;  Ddncllan  v.  Rcail,  8 
B.  &  Ad.  89!) ;  Cherry  v.  H('mill^^  4  W(4s.  II.  &  (roi-d.  CiJl  :  Smitli  v.  Nealc,  2 
O.  15.  (37;  Holbrook'v.  Anu.stron<r,  H)  Me.  HI;  Haiiirh  r.  151ytlH>,  LH)  Iiid.  L'4  ; 
Curtis  V.  Sai^'-e,  S.")  111.  22  ;  Sii^ra-ctt  v.  Casdu,  215  Mo.  221  ;  Talmadp'  c  R<'ii^st'lat'r 
&  Sar.  R.  R.,  13  Bai-b.  4')3  ;  KUicott  v.  Tunun-,  4  Md.  470  ;  Johiisou  v.  Watson,  1 
Geo.  348;  Rake  v.  Pone,  7  Ala   IGl. 

(2)  Sweot  V.  Lee,  3  Man.  &  Gr.  4')2  ;  4  Scott  (N.  R.)  77;  Frary  v.  .Storlinjr,  90 
Mass.  401;  Broadwell  v.  (letnian,  2  Denio,  87;  Bartlett  o.  Wheeler,  44  r.ai-h.  102; 
Pierce  v.  Paino's  Estate,  28  Vt.  34  ;  Emery  v.  Smith,  4(5  N.  H.  151. 

(3)  There  is,  jierhajjs,  one  exception  to  this  {^(>nei'al  jjropdsition,  arising  imdci-  th(» 
Enirlish  statutes,  and  tho.se  few  of  the  American  states  wliich  have  exactly  ccjiied 
its  lang-uaf^e,  in  the  case  of  ag^i-eementa  to  lca.se  for  a  Ioniser  term  than  one  yeai-, 
which  may  l)e  covered  l»y  tlie  clause  in  <iuestion.  and  which  are  c(M'tainIy  ca])al)ii' 
of  beini,'- partly  ]ierformed,  and  thus  l)rou<rht  within  th(>  ('([uitaMe  jurisiliction. 
In  tin;  tj-i-eat  majority  of  the  American  statutes,  however,  aj^i-eements  to  lease, 
except  for  a  term  not  exceedin<^  one  year,  have  heen  expressly  inchuled  in  the 
.section  relating-  to  contracts  for  the  sale  of  lands,  while  in  Now  York  and  some  otiiej 
states  it  has  been  held  that  such  airi'eementa  do  not  come  wthin  the  provision 
relating  to  contracts  not  to  be  performed  within  a  yeai-.     Practicallv,  therefore, 

145 


142  SPECIFIC   PERFORMANCE    OF  CONTRACTS. 

Sec.  101.  The  conclusion  is  thus  reached  that  the  doctrine  of  part 
performance  is  confined  in  its  operation  to  the  contracts  embraced 
within  the  two  remaining  clauses  of  the  statute  of  frauds,  namely, 
that  relating  to  the  sale  of  lands,  and  that  relating  to  agreements 
made  upon  the  consideration  of  marriage. (1)  Verbal  contracts  for  the 
sale  of  lands  or  of  any  interest  therein  may,  in  general,  be  part  per- 
formed, and  thus  be  brought  within  the  j  urisdiction  of  equity  and  specifi- 
cally enforced,  and  in  the  vast  majority  of  cases  which  have  involved 
the  doctrine,  the  subject-matter  of  the  agreement  was  real  estate.  As 
the  statute  speaks  of  lands,  "or  any  interest  in  or  concerning  them," 
contracts  to  lease  are  both  included  within  its  terms,  and  are  capable 
of  being  part  performed  so  as  to  be  taken  out  of  the  operation  of  the 
statute  and  made  enforcible  in  equity. (2)  In  most  of  the  American 
statutes  all  possible  doubt  upon  this  point  has  been  removed  by  adding 
a  clause  to  the  section  concerning  lands,  which  expressly  includes  agree- 
ments to  lease  for  a  time  exceeding  one  year.  Contracts  made  upon 
the  consideration  of  marriage  are  also  capable  of  })artial  performance, 
so  as  to  be  taken  out  of  the  operation  of  the  statute,  if  verbal.  Tliey 
may  stipulate  for  the  transfer  of  lands,  of  chattels,  or  of  things  in 
action  ;  or  they  may  provide  for  future  settlements  of  real  or  pergonal 
property,  in  which  case  their  specific  performance  would  consist  in 
the  execution  of  instruments  containing  the  proper  covenants  and 
other  clauses  necessary  to  carry  into  effect  the  intention  of  the  parties. 
Although,  as  will  hereafter  be  shown,  marriage  itself  is  not  a  part 
performance,  marriage  in  connection  with  other  acts  may  be  a  suffi- 
cient part  performance  upon  which  to  base  the  equitable  jurisdiction, 
and  decree  the  enforcement  of  such  agreements  whether  they  deal 
with  real  or  with  personal  property. (3)     Although,  in  order  to  admit 

agreements  to  lease  for  more  than  one  yeai-  are  referable  to  the  clause  concerning- 
lands,  and  not  to  that  concerning  agreements  not  to  be  perfoi-med  within  a  year. 

(1)  IMcElroy  v.  Ludlum,  32  JST-  J.Eq  828;  Osborne  v.  Kimball,  41  Kan.  187, 
190  ;  Hartwell  v.  Yomig,  07  Hma.  472  ;  Ollsy  v  Fisher,  34  Ch.  D  307-  In  McManus 
V.  Cooke,  35  Ch.  D.  681,  Kay,  J  ,  says  :  "(1)  The  doctrine  of  part  performance  of 
a  parol  agreement,  which  enables  proof  of  it  to  be  given  notwithstanding  the 
Statute  of  FraacU,  though  principally  applied  to  the  case  of  contracts  for  the  sale 
or  purchase  of  land,  or  for  the  acquisition  of  an  interest  in  land,  has  not  been  con- 
fined to  those  cases.  (2)  Probably  it  would  be  more  accurate  to  say  it  applies  to 
all  cases  in  which  a  court  of  equity  woiJd  entertain  a  suit  for  specific  performance 
if  the  alleged  contract  had  been  in  writing.  (3)  The  most  obvious  case  of  part 
perfoi-mance  is  when  the  defendant  is  in  possession  of  the  land  of  the  plaintiff 
under  the  parol  agi-eement.  (4)  The  reason  for  the  rule  is  that  where  the  defend- 
ant has  stood  by  and  allowed  the  plaintift"  to  fulfil  his  i^art  of  the  contract,  it 
would  be  fraudulent  to  set  up  the  statute.  (5)  But  this  reason  applies  wherever 
the  defendant  has  obtained  and  is  in  possession  of  some  substantial  advantage 
under  a  parol  agi-eement  which,  if  in  wi-iting,  would  be  such  as  the  court  would 
dii-ect  to  be  specifically  performed.  (6)  The  doctrine  applies  to  a  iiarol  agi-ee- 
ment  for  an  easement,  though  no  interest  in  land  is  intended  to  be  acquired."] 

(2)  Grant  v.  Ramsev,  7  Ohio  St.  157  ;  [Bard  v.  Elston,  31  Kan.  274  ;  Switzer  v. 
Gardner,  41  Mich.  164  ;  Smelling  v.  Valley  (Mich.),  61  N.  W.  878  (Jan.  22, 1895) ; 
Wallace  v.  Scoggrns,  17  Oreg  476 1. 

(3)  Gough  V.  Crane,  3  Md.  Ch  119  ;  4  Md  316.  A  verbal  agi-eement  that  cur- 
tain things  in  action— such  as  bonds,  notes,  etc.,  of  the  wife  should  become  the 
property  of  the  husband  absolutely,  had  to  be  sufficiently  part  performed  by  a. 

146 


PART  PERFORMANCE.  143 

"the  doctrine  of  part  performance,  the  contract  must  be  one  which 
would  be  speciiically  enforced  by  a  court  of  equity  if  it  had  been  in 
writing  ;  the  converse  of  this  proposition  is  not  true.  Every  contract 
■which,  if  written,  would  be  specifically  enforced,  is  not,  therefore, 
necessarily  capable  of  being  ])art  performed  when  verbal,  so  as  to 
admit  the  equitable  jurisdiction.  Part,  performance,  as  will  be  fully 
shown  under  the  next  subdivision,  assumes  such  a  change  in  the  rela- 
tion of  the  parties  that  a  restoration  to  their  previous  condition  is 
impracticable,  and  a  refusal  to  go  on  and  complete  the  engagement 
would  be  a  virtual  fraud  upon  one  of  the  parties.  It  is  plain  that 
there  may  be  agreements  even  concerning  interests  in  lands,  which,  by 
their  very  terms,  are  not  capable  of  such  a  part  performance.  Wherever 
part  performance  is  admissible  as  the  basis  of  equitable  interference 
and  relief,  it  furnishes  sufficient  ground  for  enforcing  the  verbal 
contracts  of  corporations  equally  with  those  of  natural  persons. (1) 

The  equitable  basis  and  essential  principles  of  the  doctrine. 

Sec.  102.  Second.  In  the  present  subdivision  I  propose  to  describe 
the  principal  foundation  upon  which  courts  of  equity  have  rested  the 
doctrine  that  a  part  performance  will  take  a  verbal  contract  out  from 
the  operation  of  the  statute  of  frauds,  and  the  general  principles  which 
constitute  the  essential  conditions  of  the  doctrine.  The  various  appli- 
cations of  these  principles  under  different  circumstances  will  be  defer- 
red to  the  next  subdivision,  which  treats  of  the  particular  acts  which 
may  amount  to  a  sufficient  part  performance. 

Fraud  the  principal  foundation. 

Sec.  103.  1.  It  might  appear  to  be  a  usurpation  of  legislative 
power  for  courts  of  equity  to  enforce  a  verbal  contract,  proved 
entirely  by  parol  evidence,  in  the  face  of  the  statute  which 
requires  the  evidence  of  a  written  instrument  signed  by  the 
party  to  be  charged.  In  truth,  however,  there  is  no  attempt 
or  design  to  repeal  the  statute.  The  doctrine  of  part  performance  is 
merely  a  particular  application  of  the  general  principle  which  sup- 
ports a  great  part  of  the  equitable  jurisdiction ;  the  principle  that 
fraud  shall  be  prevented,  relieved  against,  or  punished  in  w'hatevor 
form  or  under  whatever  guise  it  may  appear.     It  is  simply  saying 

delivery  to  the  intended  husband.  Surcome  v.  Pinniger,  3  DeG.  M.  &  G.  .'i?!  ; 
Neale  v.  Neales,  9  Wall.  1  ;  Dugan  f.  Gittings,  3  Gill.  138  ;  Hammersly  v.  De  Biel, 
12  CI.  &  Fin.  61,  6.0  ;  De  Beil  v.  Thomson,  3  Beav.  475. 

(1)  Wilson  V.  West  Hartlepool  R'y  Co.,  2  DeG.  J.  &  S.  47.5  ;  Crook  r.  Coqwra^ 
tion  of  Seaford,  L.  R.  6  Ch.  551  ;  Steevens'  Hospital  v.  Dyas,  15  Ir.  Ch.  Rep. 
405.  As  to  lands  owned  by  partnerships,  see  Dale  v.  Hamilton,  5  Hare,  369  ;  3 
Ph.  266  ;  Darby  v.  Darby,  3  Drew.  495.  ^  .„ 


144  SPECIHC  FERFORMAXCE   OF  COyTKACTS. 

that  a  man  shall  not  be  permitted  to  use  a  statute,  more  than  any  other 
assistant,  for  the  purpose  of  promoting  his  own  fraudulent  intents  or 
defending  his  own  fraudulent  conduct.  If  to  this  principle  is 
joined  the  equitable  conception  of  fraud,  which  sees  the  intent 
in  the  nature  and  consequences  of  a  man's  acts  as  well  as  in  his 
own  mental  operations,  the  doctrine  at  once  arises  as  a  natural  and 
necessary  consequence.  The  grand  principle  which  underlies  this,  as 
well  as  manyother  instances  of  equitable  jurisdiction,  was  briefly  stated 
by  V.  C.  Shadwell  :  "  The  author  of  a  mischief  is  not  the  party  who 
is  to  complain  of  the  result  of  it,  but  he  who  has  done  it  must  submit 
to  have  the  effects  of  it  recoil  upon  himself.  *  *  *  Where  a  wrong 
has  been  done,  the  wrong-doer  must  suffer  from  the  impossibility  of 
accurately  ascertaining  the  amount  of  damage. "(1)  When,  for  exam- 
ple, a  vendor  of  land,  under  a  parol  agreement,  knowingly  permits  the 
purchaser  to  take  possession,  to  make  payments  upon  the  price,  and 
to  expend  money  in  permanent  alterations  or  improvements,  and  thus 
to  render  it  impossible  for  the  parties  to  be  restored  to  their  original 
situation,  such  vendor  cannot  complain  if  a  court  of  equity,  not  being 
able  to  ascertain  the  exact  amount  of  damage,  grants  to  the  purchaser 
the  relief  of  a  specific  execution,  and  thus  causes  the  effects  of  the 
wrong  to  recoil  upon  its  author.  The  true  theory  upon  which  equity 
has  proceeded  in  applying  the  doctrine  was  stated,  with  his  usual 
accuracy,  by  Lord  Westbury  in  a  recent  case  :  "  The  court  of  equity 
has,  from  a  very  early  period,  decided  that  even  an  act  of  parliament 
shall  not  be  used  as  an  instrument  of  fraud  ;  and  if,  in  the  machinery 
of  perpetrating  a  fraud,  an  act  of  parliament  intervenes,  the  court  of 
equity,  it  is  true,  does  not  set  aside  the  act  of  parliament,  but  it  fastens 
on  the  individual  who  gets  a  title  (or  right)  under  that  act,  and  imposes 
upon  him  a  personal  obligation,  because  he  applies  the  act  as  an  instru- 
ment for  accomplishing  a  fraud.  In  this  way  the  court  of  equity  has 
dealt  with  the  statute  of  frauds."(2) 

Sec.  104.  The  foundation  of  the  doctrine  is  fraud;  not  necessarily 
an  antecedent  fraud,  consciously  intended  by  the  party  in  making 
the  contract,  but  a  fraud  inhering  in  the  consequence  of  thus  setting 
up  the  statute.  When  a  verbal  contract  has  been  made,  and  one 
party  has  knowingly  aided  or  permitted  the  other  to  go  on  and  do  acts 
in  part  performance  of  the  agreement,  acts  done  in  full  reliance  upon 
such  agreement  as  a  valid  and  binding  contract,  and  which  would  not 

(1)  Duke  of  Leeds  v.  Earl  of  Amherst,  20  Beav.  239,  242. 

(2)  McCormick  v.  Grogan,  L.  R.  4  H.  L.  82.  97,  per  Lord  "Westbury. 

148 


PART  PKRFORMANCE.  IIH 

have  been  done  without  tlie  ;t]sj;Tooiuont,  and  whicli  are  of  such  a  nature 
as  to  chauii'O  tlic  i-i^latious  of  tlio  i)artie.s,  and  to  prevent  a  icsror.ition 
to  their  former  condition  and  an  adequate  conipensatitni  for  the  loss  i>y 
a  legal  judgment  for  damages,  then  it  would  be  a  virtual  fraud  in  the 
first  party  to  interpose  the  statute  of  frauds  as  a  bar  to  a  completion 
of  the  contract,  and  thus  to  secure  for  Ipniself  all  the  benefits  of  the 
acts  already  done  in  jmrt  performance,  while  the  other  party  would 
not  only  lose  all  advantage  from  the  bargain,  but  would  be  left  with- 
out adequate  remedy  lor  its  failure  or  compensation  for  what  he  had 
done  in  pursuance  of  it.  To  prevent  the  success  of  such  a  paljjable 
fraud,  equity  interposes  nnder  these  circumstances,  and  compels  an 
entire  completion  of  the  contract  by  decreeing  its  specific  execution. 
In  the  cases,  which  are  by  far  the  most  frequent,  of  agreements  to 
purchase  and  sell  lands,  it  has  also  been  said,  in  addition  to  the  fore- 
going reasons,  that  when  the  purchaser  has  gone  into  possession  and 
made  improvements,  he  would  be  a  trespasser  and  liable  to  damage 
as  such,  unless  the  agreement  was  sustained  by  reason  of  its  part, 
performance  and  enforced  by  equity ;  and  although  this  ground  of  the 
jurisdiction  has  been  severely  criticised  by  able  courts,  it  is  clearly 
tenable  as  strengthening  and  sustaining  the  more  general  and  con- 
clusive argument  based  upon  the  principle  of  fraud. (1)     The  action 

(1)  Lester  v.  Foxcroft,  1  Colles  Pai-.  Cas.  108  ;  Foxcraft  v.  Lester,  2  Vern.  4r)0  ; 
Buckmaster  v.  Harrop,  7  Ves.  34(5,  per  Sir  Wm.  Graxt  ;  Mundy  v.  Jolliffe,  5  My. 
&  Cr.,  177,  per  Ld.  Cottenham  ;  Bond  v.  Hopkins,  1  Sch.  &  Lef.  433  ;  Clinan  v. 
Cooke,  1  Sch.  &  Lef.  22,  41 ;  Morphett  v.  Jones,  1  Sw.  181 ;  Att'y  Gen.  v.  Day,  1 
Ves.  221  ;  Walker  v.  Walker,  2  Atk.  100  ;  Whitbread  v.  Bi-ockhurst,  1  Bro.  C.  C. 
417  ;  2  V.  &  B.  1.53,  n.  ;  Hawkins  v.  Holmes,  1  P.  Wms.  770 ;  Wills  v.  Sti-adling-,  3 
Ves.  378  ;  Meynell  v.  Surtees,  3  Sm.  &  Gif.  101  ;  Fan-all  v.  Davenport,  3  Giff.  3G3  ; 
Caton  v.  Caton,  L.  R.  1  Ch.  137  ;  Parkhiivst  ^^.  Van  Cortlandt,  1  Johns.  Ch.  274, 
284 ;  Rathbun  v.  Rathbun,  6  Barb.  99,  106  ;  Meach  ?\  Perry,  1  Chip.  (Vt.)  189  ;  Til- 
ton  V.  Tilton,  9  N.  H.  386,  390  ;  Eyre  v.  Eyi-e,  4  Green  Ch.  102  ;  Gilbert  v.  The 
Trustees,  1  Beas.  180,  204 ;  Allen's  Estate,  1  Watts  &  S.  383,  38.5  ;  Greenlee  v. 
Greenlee,  22  Pa.  St.  225  ;  McKee  v.  Phillips,  9  Watts,  85,  86 ;  Moore?).  Small.  19 
Pa.  St.  461 ;  Hamilton  v.  Jones.  3  Gill  &  J.  127 ;  Crane  v.  Goug-h,  3  Md.  Ch.  119  ; 
Anthony  v.  Leftwich,  3  Rand.  255  ;  Heth's  Ex'r  v.  Wooldridg-e's  Ex'i-.  6  Hand.  605, 
(507  ;  Carlisle  v.  Fleming-,  1  Han-.  421,  430  ;  Townsend  v.  Honston,  1  Hurr.  532. 
540 ;  Church  of  the  Advent  v.  Fan-ow.  7  Ri<;h.  Eq.  378  ;  Andei-son  x\  Chi.-k.  1 
Bailey  Eq.  118.  124  ;  Ford  v.  Finney,  35  Ga.  258  ;  Gihnore  v.  Johnston,  14  Ga.  6S3  ; 
Sites  V.  Keller,  6  Hamm.  (O.)  483  ;  Undei-hill  t).  Williams,  7  Blackf.  125  ;  Hawkins 
V.  Hunt,  14  111.  42 ;  Farrar  v.  Patton,  20  Mo.  81 ;  Despain  %\  Carter,  21  Mo.  331  ; 
White  ■«.  Watkins,  23  Mo.  423;  Chambers  ?).  Leconipte,  9  Mo.  .569;  Feusier  v. 
Sneath,  3  Nev.  120 ;  [Townsend  %\  Fenton,  32  Minn.  482  ;  Nibert  v.  Baghurst.  47 
N.  J.  Eq.  201 ;  Youny-  v.  Young-.  45  N.  J.  E(i.  27,  34  ;  Campbell  v.  Fetterman,  20 
W.  Va.  398 ;  Brown  v.  Hoag,  35  Minn.  373  ;  Abliot  o.  Baldwin.  61  N.  H.  583 ; 
Beck  u  Brid,',niian,  40  Ark.  382  ;  (ioodlett  v.  Hansell.  (.6  Ala.  151  ;  Warren  v. 
Warren.  105  111.  508 ;  Seaman  v.  Ascherman,  51  Wis.  678  ;  Savag-e  ■/).  Lee.  101 
Ind.  514  ;  Brown  v.  Brown.  33  N.  J.  Ecj.  650  ;  Ponce  v.  Mc-Whorter,  50  Tex.  562 ; 
Barrett  i;.  Forney,  82  Va.  269];  BondtJ.  Hopkins,  1  Sch.  &  Lef.  433,  per  Lord  Rbdbs- 

149 


146  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

of  the  English  courts  in  thus  dealing  with  the  statute  was  beyond  a; 
doubt,  facilitated  by  the  peculiar  })hraseology  of  its  jn-ohibitioii,  which 
simply  shut  out  a  certain  kind  of  evidence,  but  did  not  pronounce  the 
contract  void.     As  soon,  therefore,  as  the  interdicted  species  of  evi- 


DALE  :  "  The  statute  of  frauds  says  that  no  action  or  suit  shall  bo  maintained  on 
an  agreement  i-elating-  to  lands,  which  is  not  in  writing,  signed  by  the  jiarty  to  be 
(•harged  with  it ;  and  yet  the  court  is  in  the  daily  habit  of  relieving,  where  the 
party  seeking'  relief  has  been  put  into  a  situation  which  makes  it  against  con- 
science in  the  other  party  to  insist  on  the  want  of  a  writing-  so  signed  as  a  bar  to 
his  i-elief.  The  tirst  case  appai'enlly  of  the  kind  was  Foxcraft  v.  Lester,  cited  2 
Vern.  456,  and  i-eported  in  CoUes'  Pari.  Cas.  208.  That  case  was  decided  on  a 
principle  acted  upon  in  courts  of  law,  though  not  applicable  by  the  mode  of  pro- 
ceeding" in  a  court  of  law  to  the  particular  case.  It  was  against  conscience  to 
suffer  the  party  who  had  entered  and  expended  his  money  on  the  faith  of  a  parol 
agreement  to  be  treated  as  a  trespasser,  and  the  other  party  to  enjoy  the  advan- 
tage of  the  money  he  had  laid  out.  At  law  fraud  destroys  rights.  The  case  of 
Foxcraft  v.  Lester,  therefoi'e,  1  conceive,  was  decided  on  clear  principle  ;  thought 
whether  the  cases  founded  on  that  case  have  been  all  so  well  considered,  I  will 
not  take  upon  me  to  say.  But  it  ajipears  from  these  cases  that  coui-ts  oi  equity 
have  decided  on  equitable  gi-ounds  in  contradiction  to  the  positive  enactment  of 
the  statute  of  frauds,  though  their  proceedings  are  in  words  included  in  it." 
Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  41,  per  Lord  Redesdale  :  "  I  take  it  that  noth- 
ing- is  to  be  considered  as  a  part  performance  which  does  not  put  the  party  into  a 
situation  that  is  a  fraud  upon  him,  unless  the  agreement  is  performed;  for  instance, 
if  upon  a  parol  agreement  a  man  is  admitted  into  possession,  he  is  made  a  tres- 
passer if  there  be  no  agreement.  This  is  put  strongly  in  the  case  of  Foxcraft  v. 
Lester  ;  there  the  party  was  let  into  possession  on  a  parol  agreement,  and  it  was 
said  that  he  ought  not  to  be  liable  as  a  wrong-doer,  and  to  account  for  the  rents 
and  profits  ;  and  why '?  because  he  entered  in  pursuance  of  an  agreement.  Then, 
for  the  purpose  of  defending  himself  against  a  charge  which  might  otherwise  be 
made  against  him,  such  evidence  was  admissible  ;  and  if  it  was  admissible  for 
such  purpose,  there  is  no  reason  why  it  should  not  be  admissible  throughout ; 
that,  I  apprehen;!,  is  the  ground  on  which  courts  of  equity  have  proceeded  in 
permitting  part  performance  of  an  agreement  to  be  a  ground  for  avoiding  the 
statute ;  and  I  take  it,  therefore,  that  nothing  is  to  be  considered  as  part  per- 
formance which  is  not  of  that  nature.  Payment  of  money  is  not  part  performance, 
for  it  may  be  repaid,  and  then  the  parties  would  be  just  as  they  were  before  ; 
especially  if  repaid  with  interest.  It  does  not  put  a  man  who  has  parted  with  his 
money  into  the  situation  of  a  man  against  whom  an  action  may  be  brought;  for, 
in  the  case  of  Foxcraft  v.  Lester,  which  first  led  the  way,  if  the  jiarty  could  not 
have  produced  in  ev deuce  the  pai-ol  agreement,  he  might  have  been  liable  in 
damages  to  an  immense  extent."  Mundy  i\  Jolliffe,  5  My.  &  Cr.  177,  per  Lord 
CoTTENHAM :  "  Courts  of  equity  exercise  their  jurisdiction  in  decreeing  specific 
performance  of  verbal  agreements  where  there  has  been  part  performance,  for 
the  purpose  of  preventing  the  great  injustice  which  would  arise  from  permitting 
a  party  to  escape  from  the  engagements  he  has  entered  into,  vipon  the  ground  of 
the  statute  of  frauds,  after  the  other  party  has,  upon  the  faith  of  such  engage- 
nient,  expended  his  money,  or  otherwise  acted  in  execution  of  the  agreement. 
Under  such  circumstances,  the  court  will  struggle  to  prevent  such  injustice  fi'oni 
being  effected."  Parkhurst  i).Van  Cortlandt,  1  Johns.  Ch.  274  284,  per  Kent,  Ch. : 
"The  gi'ound  of  the  relief  in  chancery  is  the  fraud  in  permitting  a  parol  agree-^ 
ment  to  be  partly  executed,  and  in  leading  on  a  party  to  expend  money  in  the 
150 


PART  PERFORMANCE.  147 

dence  was  once  held  admissible,  and  the  terms  of  the  verbal  contract 
thereby  proved,  in  order  to  shield  the  purchaser  wlio  had  been  led 
into  possession  under  it  from  the  liabilities  of  a  trespasser,  and  of 
accounting  for  the  rents  and  profits,  there  was  really  nothing  in  the 

melioration  of  the  estate,  and  then  to  withdraw  from  the  perftninance  of  the  con- 
tract. The  courts  of  e(]uity,  in  their  anxiety  to  g-uaid  the  parly  from  the  etfecta 
of  fraud,  have  been  led  to  some  fluctuating  decisions  on  this  point  of  part  per- 
formance ;  but  the  current  of  cases,  both  ancient  and  modern,  is  fully  uniform  and 
consistent  with  the  jirinciple  I  have  stated,  and  the  tendency  of  the  latter  cases  is 
to  prefer  giving-  the  pai-ty  compensation  in  damages  instead  of  a  specific  per- 
formance. Wheievei-  damages  will  answei-  the  purpose  of  indemnity,  this  alter- 
native is  to  be  preferred,  as  it  will  equally  satisfy  justice,  and  will  be  in 
coincidence  with  the  provisions  and  in  support  of  the  authority  of  the  statute." 
It  should  be  observed  that  these  remarks  of  Ch.  Kent  were  made  in  respect  to 
the  earlier  decisions,  and  that  the  principle  stated  in  the  text  is  now  thoroughly 
established,  and  the  line  of  distinction  is  cleai-ly  drawn  between  those  cases  in 
which  the  equitable  relief  of  a  specific  execution  will  be  granted,  and  those  in 
which  the  acts  of  part  pei'formance  can  be  sufficiently  compensated  or  indemnified 
against  by  an  award  of  damages.  The  conditions  of  a  part  perfoi-mance  wei-e 
bi-iefly  summed  up  in  Wi-ight  v.  Pucket.  22  Gratt,  374 :  "1.  The  parol  agreement 
relied  on  must  be  certain  and  definite  in  its  terms.  2.  The  acts  proved  in  part 
pei'formance  must  refer  to,  result  from,  or  be  made  in  pursuance  of,  the  agi-ee- 
ment  proved.  3.  The  agreement  must  have  been  so  far  executed  that  a  refusal 
of  full  execution  would  operate  as  a  fi-aud  upon  the  party,  and  place  him  in  a 
situation  which  does  not  lie  in  compensation.  Where  these  three  things  concur, 
a  court  of  equity  may  decree  specific  execution.  Whei-e  they  do  not,  it  will  turn 
the  party  over  to  seek  compensation  in  damages  in  a  court  of  law."  For  a  very 
strong  case  affirming  the  rule,  that  the  statute  cannot  be  used  to  promote  a  fraud, 
see  Haigh  v.  Kaye,  L.  R.  7  Ch.  469.  The  argument  in  support  of  the  jurisdic- 
tion advanced  by  many  of  the  cases  as  auxiliary  to  the  main  principle  of  fi'aud, 
namely  :  that  a  purchaser  who  takes  possession  under  a  parol  contract  of  sale 
would  be  liable  as  a  trespasser,  unless  the  agreement  should  be  completely 
enforced,  has  been  pronounced  fallacious  and  untrue  in  fact,  for  the  reason  that 
a  parol  permission  for  the  purchaser  to  take  possession  is  a  license  and  protects 
him  from  liability  for  his  entry,  and  for  all  acts  done  before  such  license  is 
revoked.  See,  among  other  cases.  Glass  v.  Hulbert,  102  Mass.  25,  per  Wells,  J. 
This  ci'iticism  itself  is  unsound,  and  is  based  upon  an  entii-e  misconception  of  the 
position  which  it  assails.  The  argument  in  questiiin  does  not  deny  that  a  parol 
license  is  a  protection,  nor  does  it  assume  that  a  specific  pei-formance  is  decr<!ed 
wholly  because  the  jiurchascr  would  otherwise  be  a  trespasser.  The  exact 
grounds  and  extent  of  the  position  were  stated  by  Lord  Redesd.\lk  in  tlie  extract 
aVjove  quoted  fj-om  his  ju<lgment  in  Clinan  v.  Cooke.  In  order  to  avail  himself  ot 
the  license  to  defeat  the  claim  made  against  him  as  a  trespasser,  and  for  rents 
and  profits,  the  purchaser  must  still  prove  the  conti-act,  and  thus  parol  evidence 
completely  establishing  the  contract  must  be  admitted,  notwithstanding  the  pro- 
hibition of  the  statute  ;  the  evidence  being  once  admitted,  and  the  contract  pi'oved 
by  parol  for  this  jiurpose,  the  court  simply  gives  full  effect  to  that  evidence  for 
all  purposes.  Undoubtedly  this  reasoning,  and  the  action  of  the  courts,  is  lai-gely 
based  upon  the  2)eculiar  language  of  the  statute,  which  is  aimed  at  the  evidence, 

mi 


148  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

statute  which  forbade  the  courts  to  give  that  evidence  its  full  force 
and  effect,  by  making-  it  the  foundation  for  a  decree  of  specilic  per- 
fornuiuce.  When,  in  several  of  the  American  states,  the  language  of 
the  statute  was  materially  altered  so  as  to  declare  the  agreement  void, 
unless  written  and  signed  or  subscribed,  the  doctrine  of  part  perform- 
ance had  been  too  long  and  too  tirmly  established  for  the  courts  to 
inquire  very  closely  into  the  intention  of  the  legislators  in  making  the 
change  ;  this  principle  has,  therefore,  continued  to  be  recognized  and 
acted  upon,  with  hardly  an  exception,  in  those  states  as  well  as  in 
the  others,  which  have  preserved  the  original  form  of  the  enact- 
ment.(1) 

and  not  at  the  intrinsic  validity  of  the  contract  itself.  The  theory  and  extent  of 
the  doctrine  were  very  clearly  stated  in  Caton  v.  Caton,  L.  R.  1  Ch.  137,  147,  by 
Ld.  Chan.  Cran worth.  After  reciting  the  provision  of  the  statute  of  frauds,  and 
declaring  that  it  was  binding  in  equity  as  well  as  in  law,  he  proceeds :  "  But 
though  courts  of  equity  have  held  themselves  bound  by  this  last  enactment,  yet 
they  have  in  many  cases  felt  themselves  at  liberty  to  disregard  it,  when  to  insist 
upon  it  would  be  to  make  it  the  means  of  effectiiating  instead  of  preventing  fraud. 
This  is  the  groimd  on  which  they  require  specific  pei-formance  of  a  parol  contract 
for  the  sale  or  purchase  of  land,  when  that  contract  has  been  in  part  performed. 
The  right  to  relief  in  such  cases  rests  not  merely  on  the  contract,  but  what  has 
been  done  in  pursuance  of  the  contract.  *  *  *  "J'he  gi-onnd  on  which  the 
court  holds  that  part  performance  takes  a  contract  out  of  the  provisions  of  the 
statute  of  frauds  is,  that  when  one  of  two  contracting  i:)arties  has  been  induced  or 
allowed  by  the  other  to  alter  his  position  on  the  faith  of  the  contract — as,  for  in- 
stance, by  taking  possession  of  land  and  expending  money  in  building,  or  other 
like  acts — then  it  would  be  a  fraud  in  the  other  party  to  set  up  the  legal  invalidity 
of  the  contract  on  the  faith  of  which  he  induced  or  allowed  the  person  contracting 
with  him  to  act  and  expend  his  money.  But  such  cases  bear  no  i-esemblance  to 
that  now  under  consideration.  *  *  *  I  presume  it  will  not  be  ai-gued  that 
any  consequence  can  be  attached  to  acts  of  part  performance  by  the  party  sought 
to  be  charged.  If  I  agree  with  A.,  without  writing,  that  I  will  build  a  house  on 
my  land,  and  then  will  sell  it  to  him  at  a  stipulated  pi-ice,  and  in  pursuance  of 
that  agreement  I  build  a  house,  this  may  afford  me  ground  for  comiielling  A.  to 
complete  the  purchase,  but  it  certainly  would  afford  no  foundation  for  a  claim  by 
A.  to  compel  me  to  sell  on  the  ground  that  /  had  partly  performed  the  contract. 
The  circumstance  of  the  prepai-ation  and  executing  of  the  will  (the  acts  claimed  to 
be  a  part  performance  of  an  ante-nuptial  agreement)  might  afford  strong  evidence 
of  the  existence  of  the  parol  contract  insisted  on,  if  that  were  a  matter  into  which 
we  were  at  liberty  to  inquire,  but  it  can  have  no  effect  in  giving  validity  to  an 
otherwise  invalid  contract."  See,  also,  Senimes  v.  Worthington,  38  Md.  298  ; 
Morgan  v.  Bergen,  3  Neb.  209 ;  Horn  v-  Ludington,  32  Wise.  73 ;  Pierce  v. 
Catron,  23  Gratt.  588. 

(1)  The  change  in  the  language  of  the  statute,  although  radical  ami  apparently 
fraught  with  the  gravest  conseqiences  in  its  construction,  does  not  seem  to  have 
produced  any  material  results,  or  to  have  made  the  act  anything  more  than  a  I'ule 
of  evidence ;  a  remarkable  example  of  judicial  power  in  controlling,  or  even 
thwarting,  the  intent  of  legislatiu-es. 
152 


PART    I'KRFORMAiyCE.  149 

Sec.  105.  From  the  fuudiimental  priiK'ii)le  above  stated,  several 
subordinate  rules  are  deduced  as  necessary  c(»r()llaries.  In  tli»^  iirst 
place,  the  acts  of  part  performance  must  be  done  by  the  party 
seeking  to  enforce  the  contract — that  is,  in  nio.st  instances,  by  the 
plaintirt'.  11'  iho  acts,  in  pursuance  of  the  agreement,  liave  been 
done  alone  by  the  party  who  is  to  be  charged,  his  ceasing  and  refusing 
to  complete  cannot  be  a-  fraud  upon  the  otlier  party  re(iuiring  tlie 
interposition  of  ecpiity,  for  the  other  party  lias  done  nothing,  or  suf- 
fered nothing  to  change  his  own  original  position.  Such  acts,  at,  most 
merely  prove  the  existence  of  an  agreement ;  l>ut  ecpiity  does  not 
profess  to  enforce  a  verbal  agreement  simjjly  because  it  lias  been 
satisfactorily  established. (1)  For  example,  payment  of  the  i)urchase- 
moncy  by  the  vendee  is  not  a  ground  for  a  specific  performance  at  the 
suit  of  the  vendor.(2)  And  acts  done  by  jiersons  not  parti(^s  to  the 
contract,  and  not  agents  or  representatives  of  the  plaintiff,  cannot 
amount  to  a  part  performance  ;  as,  for  exami)le,  in  a  parol  agreement 
to  divide  lands  by  means  of  arbitrators,  their  acts,  done  under  the 
bargain  and  in  partial  execution  thereof,  do  not  take  the  case  out  of 
the  statute. (3)  Again,  as  fraud  will  be  relieved  against,  uiuhu-  all 
circumstances  and  by  whomsoever  committed,  the  doctrine  of  part 
performance  is  applied  to  corporations  equally  with  natural  persons  ; 
and  is  made  the  ground  for  enforcing  their  parol  agreements,  although 
by  the  common-law  rule,  which  still  prevails  in  England,  they  cannot 
generally  contract  except  by  means  of  their  corporate  seal. (4)  As  this 
dogma  of  the  ancient  law  has  been  abandoned  in  the  United  States, 
no  doul»t  can  arise  as  to  the  power  to  enforce  the  verbal  agreements 
of  corporations  ;  their  capacity  to  contract,  within  the  domain  of  their 
corporate  functions — that  is,  their  capacity  to  contract  so  far  as  the 
external  forms  and  methods  are  concerned — is  the  same  as  that  of 
individuals. (5) 

(1)  Caton  V.  Caton,  L.  R.  1  Ch.  137 ;  Buckmaster  v.  Han-op,  7  Vcs.  341,  per  Sir 
"Wm.  Grant;  Rathbim  v.  Rathbuu,  G  I3arb.  08;  Suchett  v.  Williamson,  37  Md. 
388;  [Barnes  v.  Boston,  etc.,  R.  R.  Co.,  132  Mass.  388.  So,  the  vendor,  wIk-u 
plaintiff,  cannot  insist  on  acts  of  the  defendants  as  part  iierfomiance  ;  Suckett  v. 
Williamson,  87  Mo.  388;]  but  see,  Lowe  v.  Bryant,  30  Geo.  .W8  ;  Whitredfj-e  r. 
Parkharst,  20  Md.  C2. 

(2)  Buckmaster  v.  Harrop,  7  Ves.  341 ;  13  Ves.  45G.  His  refusing-  to  go  on  and 
complete  after  such  payment  "'would  be  no  fraud  upon  the  seller,  but  his  own 
loss." 

(3)  Cooth  V.  Jackson,  6  Ves.  12.  [Part  performance  may  Ix^  availed  of  by  tin- 
parties  to  the  contract  and  those  claiming-  under  them  ;  Brown  r.  Hoag-,  f).")  Minn. 
373  ;  McClure  v.  Otrich,  118  111.  320.] 

(4)  London  &  Birming'hani  Ry.  Co.  v.  WinttM-,  Cr.  <fc  Pii.  ,")7  :  Karl  of  Lintlsey  r. 
Great  Northern  Ry.  Co.,  10  Ha.  G04,  700  ;  Wilson  v.  W(>st  Ilarth'pool  Ry.  Co-.  2 
De  G.  J.  &  S.  47")  ;  Crook  v.  Corpoi-ation  of  Scaford,  L.  R.  G  Ch.  .')r)l  ;  Rt.>.-vcn's 
Hospital  V.  Dyas,  15  Ir.  Ch.  R.  40.'. 

(5)  Ang.  &  Ames  on  Corporations,  §§  219,  237-241  ;  Dillon  on  Mimic.  Corp'ns. 

153 


150  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

Sec.  106.  In  every  case  where  the  doctrine  of  part  performance  has 
been  applied,  the  elements  of  a  constructive  fraud  will  be  found  to 
exist,  and  in  the  absence  of  these  elements  equity  always  refuses  to 
interfere.  There  must  be  acts  of  such  a  nature  that  the  plaintiff  can- 
not be  replaced  in  his  original  position  or  adequately  compensated  by 
damages  ;(1)  and  there  must  be  the  knowledge  on  the  part  of  the 
defendant,  which  is  an  essential  ingredient  of  every  fraud  either  actual 
or  constructive.  Acts  may,  therefore,  be  done  by  tlie  plaintiff  in  pursu- 
ance of  the  contract,  in  reliance  upon  it,  and  which  would  not  have 
been  done  without  it,  but  which  nevertheless,  will  not  entitle  him  to 
a  decree  of  specific  performance,  because  he  may  be  restored  to  his 
former  condition  and  liis  loss  made  up  by  a  legal  remedy  ;  so  that 
the  ultimate  non-performance  of  the  agreement  does  not  constitute  the 
hardship  or  imposition  upon  him  which  equity  requires  as  the  occa- 
sion of  its  interference. (2)  For  this  reason  payment  of  the  price  by 
the  purchaser  is  not  by  itself  a  sufficient  part  performance,  since  he 
can  recover  it  back  at  law.(3)  Upon  the  same  principle,  if  possession 
or  improvements  are  taken  or  made,  or  other  acts  are  done  against 
the  vendor's  consent  or  even  without  his  knowledge,  they  would  lack 
an  essential  element  for  the  imputation  of  fraud,  and  would  not  be  a 
ground  for  enforcing  the  agreement. (4)  To  constitute  a  fraud  the 
knowledge  and  the  conduct  which  is  inconsistent  and  unfair  with 
reference  to  it,  must  unite  in  one  and  the  same  individual.  If,  there- 
fore, an  agreement  is  made  by  one  person,  acts  of  part  performance 
by  the  jjlaintiff  which  would  avail  against  him,  may  be  entirely 
without  effect  where  the  contract  is  sought  to  be  enforced  against 
another  person  between  whom  and  the  original  party  there  is  no 
privity  or  representative  relation.  If  in  England  an  agreement  made 
with  a  tenant  for  life  is  enforced  against  the  remainder  man,  tlie 
plaintiff's  part  performance  will  not  entitle  him  to  the  relief,  unless 
he  can  prove  that  the  defendant,  the  remainder  man,  knew  of  the 

(1)  [Brown  v.  Brown,  33  N.  J.  Eq.  650,  660.] 

(2)  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  274,  284  ;  Tilton  v.  Tilton,  9  N.  H. 
386,  390;  Gilbert  v.  Trustees,  etc.,  1  Beasley,  179,  204;  White  v.  Watkins,  23 
Mo.  423  ;  Chambers  v.  Lecompte,  9  Mo.  569  ;  Hawkins  v.  Hunt,  14  111.  42 ;  Crane 
V.  Gough,  3  Md.  Ch.  119  ;  Allen's  Estate,  1  Watts  &  Serg.  383,  385  ;  McKee  v. 
Phillips,  9  Watts,  85,  86. 

(3)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  40,  per  Lord  Rbdesdalb  ;  Hughes  v.  Mor- 
ris, 2  De  G.  M.  &  G.  356 ;  Eaton  v.  Whitaker,  18  Conn.  222,  229  ;  Rhodes  v. 
Rhodes,  3  Sandf.  279,  284 ;  Ham  v.  Goodrich,  33  N.  H.  32,  39  ;  Glass  v.  Hulbert, 
102  Mass.  24. 

(4)  Lordv.Underdunck,l  Sandf.  46,48;  .Jervis-w.  Smith,  Hot!".  470,  475  ;  Thomp- 
son V.  Scott,  1  McCord,  32,  39  ;  [Nibert  v.  Baghurst,  47  N.  J.  Eq.  201 ;  Boulder 
Valley  Ditch  Mining,  etc.,  Co.  v.  Farnham  (Mont.)  29  Pac.  R.  277  (Mar.  21, 
1892) ;  Curtin  v.  Hammond,  10  Mont.  1  Foster  v.  Maginnis,  89  Cal.  264 ; 
Ryan  v.  Wilson,  56  Tex.  315  (improvements  made  after  vendoi"'s  death,  not  avail- 
able by  way  of  pai-t  performance  against  his  infant  heirs)  ]. 

154 


PART  PBRFORMANCK.  151 

contract  and  permitted  the  acts  done  in  pursuance  of  it.(l)  This, 
therefore,  is  tlie  princi})le  by  which  every  case  is  to  be  doterniiiied, 
by  which  every  difficulty  is  to  be  resolved ;  if  the  refusal  to  complete 
the  verbal  contract  which  lias  been  })artly  j)erforuied,  would,  within 
the  established  doctrines  of  equity,  operate  as  a  fraud  upon  the  party 
who  has  done  the  acts,  then  a  court  of  equity  will  compel  the  wrong- 
doer to  bear  the  results  of  his  bad  faith,'  and  will  not  suffer  him  to 
use  the  statute  of  frauds  as  a  cover  for  his  unjust  and  inequitable 
conduct.(2) 

Nature  of  the  acts  ^vith  reference  to  the  agreement.  —  The 
acts  of  part  performance  must  be  done  in  pursuance  of 
the  agreement  alleged,  and  ^vith  the  design  of  carrying 
the  same  into  complete  execution.(3) 

Sec.  107.  2.  It  is  inmortant  here  to  obtain  an  accurate  notion  con- 
cerning the  facts  which  the  acts  of  part  performance  must  show  to  exist, 
in  order  that  they  may  be  a  sufficient  ground  for  the  interference  of 
equity,  especially  as  there  are  misleading  dicta  and  even  erroneous 
decisions  upon  this  particular  point.  In  a  suit  to  enforce  the  specific 
performance  of  a  verbal  contract  embraced  within  the  statute  of  frauds, 
two  distinct  facts  are  established  by  parol  evidence — the  acts  of  part 
performance,  and  the  terms  of  the  agreement  itself.  According  to  the 
theory  upon  which  equity  proceeds,  in  such  cases,  the  part  perform- 
ance must  be  first  proved,  in  order  to  fulfill  the  condition  precedent 
for  letting  in  parol  evidence  of  the  agreement ;  and  this  is  not  a  mere 
question  of  the  order  of  proofs — it  involves  the  very  principle  of  the 
jurisdiction.     As  soon  as  a  sufficient  part  performance  is  made  out,  the 

(1)  Shannon  v.  Bradstreet,  1  Se-h.  &  Lef.  72 ;  Moi-gau  i'.  Milman,  3  DeG.  M.  & 
G.  33,  per  Lord  Ceanworth  ;  Blore  v.  Sutton,  3  Mer.  237  ;  Whitbread  v.  Brock- 
hurst,  1  Bi-o.  C.  C.  404.  The  relations  of  remainder  men  to  the  life  tenants  have 
been  so  radically  changed  by  statute  in  the  American  states,  that  this  question 
could  hardly  arise  in  this  country. 

(2)  It  has  been  suggested  in  a  recent  case  and  by  a  very  able  equity  judge 
(Morgan  v.  Milman,  3  DeG.  M.  &  G.  35,  per  Lord  Ckanworth),  that  where  the 
acts  done  by  the  plaintiff  admit  of  two  remedies  in  the  alternative,  the  one  a 
specific  execution  of  the  agreement  in  equity,  and  the  other  a  special  proceeding 
to  accomplish  the  same  general  purpose  given  by  statute,  such  acts  could  not, 
under  the  circumstances,  constitute  a  pai-t  performance,  since  the  refusal  of  the 
defendant  to  complete  could  not  be  considered  a  fi-aud  upon  the  plaintiff  when 
he  is  at  liberty  to  avail  himself  of  the  other  special  remedy.  This  conclusion,  of 
course,  assumes  that  the  alternative  remedy  is  something  more  than  the  ordinary 
legal  relief  of  damages,  and  is  something  in  fact  tantamount  to  a  specific  jx'r- 
formance.  The  opiiuon,  moreover,  is  only  a  dictum,  and  its  correctness  is  doubt- 
ful ;  for,  in  general,  a  new  remedy,  given  by  statute,  does  not  displace  the  i)rior 
existing  remedies  at  law  or  in  etpiity.  See  Sedgwick  on  Statutory  Law  (2il  ed.), 
pp.  75,  76. 

(3)  "  The  acts  proved  in  part  performance  must  refer  to,  result  from,  or  be 
made  in  pursuance  of  the  agreement  proved."     "Wright  v.  Pucket,  22  Graft.  374. 

155 


152  SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

plaintiff  may  go  on  and  show  the  terms  of  the  verbal  contract.  There 
are,  therefore,  two  distinct  branches  of  parol  evidence,  with  a  distinct 
fact  to  be  established  by  each,  but  proceeding  in  a  fixed  order  of 
time,  and  of  antecedent  and  consequent ;  not,  however,  exactly  in  the 
order  of  cause  and  effect.  Now,  the  question  before  us  is,  "What  must 
be  proved  by  the  first  branch  of  this  parol  evidence,  in  order  to  open 
the  way  for  the  second  ?  In  the  vast  majority  of  cases  the  evidence 
establishing  the  part  performance,  and  the  acts  of  part  performance 
themselves,  when  established,  do  not  and,  in  the  nature  of  things, 
cannot  fully  show  what  are  the  terms  of  the  agreement  alleged  and 
relied  upon  by  the  plaintiff,  nor  are  they  introduced  for  any  such 
purpose.  The  judicial  opinions  which,  in  unguarded  and  careless 
language,  would  require  the  acts  of  part  performance  to  prove  the 
exact  contract  as  alleged,  are  in  this  respect  clearly  erroneous.  The 
true  rule  is,  that  the  acts  of  part  performance  must  be  such  as  show 
that  some  contract  exists  between  the  parties ;  that  they  were  done 
in  pursuance  thereof,  and  that  it  is  not  inconsistent  with  the  one 
alleged  in  the  pleading.  Whenever  acts  of  part  performance  are 
made  out,  which  thus  point  to  a  contract,  the  door  is  opened,  and  the 
plaintiff  may  introduce  additional  parol  evidence  directed  immedi- 
ately to  the  terms  of  the  contract  relied  upon.(l) 

(1)  There  are  some  cases  wliich  lay  down  the  rule  that  the  acts  of  part  per- 
formance must  clearly  jirove  the  contract  as  alleg-ed ;  must  do  more  than  show 
the  existence  of  some  contract,  by  being  of  themselves  evidence  of  the  very  con- 
tract which  the  plaintiff  seeks  to  enforce.  See  Phillips  v.  Thompson,  1  Johns. 
Ch.  131  ;  Chesapeake,  etc..  Canal  Co.  v.  Young,  3  Md.  480 ;  Beard  v.  Linthicum, 
1  M(l.  Ch.  345  ;  Goodhue  v.  Barnwell,  Rice  Eq.  (S.  C.)  198  ;  Grant  v.  Craigmile,  1 
Bibb.  203.  In  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1,  8,  Lord  Rbdesadlb  is  reported 
to  have  said,  that  the  acts  of  pai-t  performance  must  be  such  as  show  them  to 
have  been  done  in  pursuance  of  the  very  same  agreement  as  that  alleged  by  the 
plaintiff.  These  American  decisions  may  have  resulted  from  a  misunderstanding 
or  misapplication  of  the  language  used  by  Sir  William  Grant  in  Frame  v. 
Dawson,  14  Ves.  386,  that  the  part  performance  must  be  "an  act  unequivocally 
referring  to  and  resulting  from  the  agreement ;"  by  giving  an  undue  force  to  the 
article  "the  ;"  "  the  agreement."  If  this  were  the  true  rule,  then  the  whole  doc- 
trine of  enforcing  a  verbal  contract  which  has  been  jiart  performed,  would  rest 
upon  a  most  vicious  reasoning  in  a  circle,  since  the  acts  of  part  performance  would 
be  relied  on  to  pi-ove  the  agreement,  while  their  character  as  acts  of  part  per- 
formance would  at  the  same  time  be  proved  by  the  agreement.  The  correct  rule^ 
as  given  above  in  the  text,  is  admirably  stated  in  the  following  quotation  from 
the  judgment  of  Shadwell,  V.  C,  in  Dalet).  Hamilton,  5  Ha.  3(39  :  "  It  is  generally 
■of  the  essence  of  such  an  act  (of  ]mrt  performance)  that  the  court  shall,  l)y  reason 
of  the  act  itself,  without  knowing  whether  there  was  an  agi-eement  or  not,  find 
the  parties  unequivocally  in  a  position  different  from  that  which,  according  to 
their  legal  rights,  they  would  be  in  if  there  were  no  contract.  Of  this  a 
common  example  is  the  delivery  of  possession.  One  man,  without  being 
amenable  to  the  charge  of  trespass,  is  found  in  the  possession  of  another  man's 
156 


PART   FERFOmr.iXCK.  WS 

Sec.  108.  With  this  explanation  of  their  probative  effect,  the  acts 
of  part  performance  muse  be  done  in  pursuance  of  the  agreement ; 
must  unequivocally  refer  to  and  result  from  the  agreement;  or,  in 
other  words,  clearly  showing  that  there  exists  some  contract  between 
the  parties,  they  nuist  be  exclusively  referable  thereto ;  it  must, 
appear  that  they  would  not  have  been  d(]ne  except  on  account  thereof, 
and  they  must  be  consistent  with  the  contract  alleged.  When  parol 
evidence  has  been  admitted  to  prove  the  agreement  in  suit,  the  acts 
of  part  performance  must  be  clearly  and  exclusively  referable  to  and 
in  pursuance  of  its  terms.  Undoubtedly  much  of  the  general  language 
found  in  the  cases  is  intended  to  descriV>e  the  necessary  correspond- 
ence between  the  acts  of  part  performance  and  the  agreement  alleged, 
after  it  has  thus  been  established  by  the  evidence  directly  introduced 
for  that  purpose. (1)     The  theory  upon  which  equity  proceeds  in  this 

land.  Such  a  state  of  things  is  considered  as  showing-  unequivocally  that 
some  contract  has  taken  place  between  the  litiganc  parties  ;  and  it  has,  therefore, 
on  that  specific  ground,  been  admitted  to  be  an  act  of  part  performance.  But  an 
act  which,  though  in  truth  done  in  pursuance  of  a  contract,  admits  of  explanation 
without  supposing  a  contract,  is  not,  in  general,  admitted  to  constitute  a  part  per- 
formance to  take  the  case  out  of  the  statute  of  fi-auds  ;  as,  for  exami)le,  the  pay- 
ment of  a  sum  of  money  alleged  to  be  purchase-money."  See,  also,  Allan  v. 
Bower,  3  Bro.  C.  C.  149  ;  Frame  v.  Dawson,  14  Ves.  38(5 ;  Morphctt  v.  Jones,  1 
Sw.  172  ;  Savage  v.  Carroll,  1  Ball  &  B.  265  ;  Toole  v.  Medlicott,  1  Ball  &  B.  393  ; 
Sutherland  v.  Briggs,  1  Ha.  27  ;  Tomkinson  v.  Staight,  17  C.  B.  697,  707,  per 
Williams,  J.  ;  Parkhurst  v.  Van  Cortlandt,  14  Johns.  15  ;  Ilari-is  v.  Kuicker- 
backer,  5  Wend.  638 ;  Jones  v.  Peterman,  3  Serg.  &  R.  543 ;  Church  i\  Stei-ling, 
16  Conn.  402.  [See  the  elaboi-ate  discussion  of  this  doctrine  in  Maddison  v.  Alder- 
son,  8  App.  Cas.  467,  where  the  House  of  Lords,  affirming  the  judgment  of  the 
Court  of  Appeal,  held  that  where  the  pi-omise  of  a  gift  of  land  was  made  to  the 
plaintiff  in  consideration  that  she  remained  in  the  service  of  the  i)romisor  during 
his  lifetime,  the  continuance  of  the  service  for  the  i-equired  pei-iod  couhl  not  Ik^ 
regarded  as  exclusively  referable  to  the  jiromised  gift.  See,  also,  Andrew  v. 
Babcock  (Conn.),  26  Atl.  Rep.  715  (May  4,  1893)  :  Bucie  v.  Ford  (Mont),  19  Pac 
Rep.,  414  ;  Pike  v.  Peters,  71  Ala.  98  ;  Beal  v.  Clark,  71  Ga.  81S  ;  Hale  v.  Hale 
(Va.),  19  S.  E.  Rep.,  739.] 

(1)  Lacon  v.  Mertins,  3  Atk.  3,  4,  per  Lord  Hakuwicke  :  "  It  must  be  such  an 
act  done  as  appears  to  the  court  would  not  have  been  done  except  on  account  of 
the  agreement."  Frame  v.  Dawson,  14  Ves.  386,  \)Qr  Sir  Willi aji  Grant  :  "It 
mxxst  be  an  act  imequivocally  referring  to  and  resulting  from  the  agreement." 
Cooth  V.  Jackson,  6  Ves.  12;  Buckmaster  v.  Ilari-op.  7  Ves  341;  Moi-j)lK'tt  i\ 
Jones,  1,  Sw.  172;  O'Reilly  r.  Thompson,  2  Cox,  271 ;  Parker  v.  Smith,  1  Coll.  C. 
C.  624  ;  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1 ;  Brennan  o.  Bolton,  2  Di-u.  &  Wal.  349  ; 
Wills  V.  Stradling,  3  Ves.  378  ;  Meynell  v.  Surtees,  3  Sm.  &  Giff.  101 ;  Phillips  v. 
Thompson,  1  John.s.  Ch.  131,  149;  Rathbun  v.  Rathbun,  6  Barb.  98;  Jervis  it. 
Smith,  Hoff.  Ch.  470;  Ham  v.  Goodj-ich,  33  N.  H.  32  ;  North  v.  Fore.st,  15  Conn. 
400;  Osl)orn  v.  Phelps,  19  Conn.  74,  75;  Peckham  i\  Barbie".  8  II.  I.  17;  Cole  v. 
Potts,  2  Stockt.  67;  Robertson  v.  Robei-tson,  9  Watts,  32,  42;  Moore  v.  Small,  7 
Harris  (19  Pa.  St.),  461 ;  Cox  v.  Cox,  2  Casey,  375  ;  Kckert  v.  Iv-kert,  3  Penn.  332; 
Frye  v.  Shepler,  7  Barr.  91  ;  Duvall  v.  Myei-s,2  Md.  Ch.  401  ;  Moale  v.  Buchanan, 
11  Gill  &  J.  314 ;  Chesajx^ake  &  Ohio  Canal  Co.  v.  Young,  3  Md.  480 ;  Mundorflf 

157 


154  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

branch  of  its  jurisdiction  is  well  established,  and  if  rig-htly  understood, 
it  will  harmonize  all  the  cases  and  remove  all  occasion  of  doubt  or 
confusion.  A  plaintiff  cainiot,  in  the  face  of  the  statute,  prove  a 
verbal  contract  by  parol  evidence,  and  then  show  that  it  has  been 
partly  performed.  This  course  of  proceeding  would  be  a  virtual 
repeal  of  the  statute.  He  must  first  prove  acts  done  by  himself,  or  on 
his  behalf,  which  point  unmistakably  to  a  contract  between  himself 
and  the  defendant,  which  cannot,  in  the  ordinary  course  of  human 
conduct,  be  accounted  for  in  any  other  manner  than  as  having  been 
done  in  pursuance  of  a  contract,  and  which  would  not  have  been  done 
without  an  existing  contract ;  and  although  these  acts  of  part  per- 
formance cannot,  of  themselves,  indicate  all  the  terms  of  the  agreement 
sought  to  be  enforced,  they  must  bo  consistent  with  it,  and  in  con- 
formity wdth  its  provisions  when  these  shall  have  been  shown  by 
the  subsequent  parol  evidence.     It  follows,  from  this  invariable  rule, 

V.  Howard,  4  Md.  459 ;  Shepherd  v.  Shepherd,  1  Md.  Ch.  244  ;  Owings  v.  Bald- 
win, 8  Gill,  337 ;  Shejiherd  v.  Bevin,  9  Gill,  32  ;  Hamilton  v.  Jones,  3  Gill  &  J. 
127  ;  Gough  v.  Crane,  3  Md.  Ch.  132 ;  Hall  v.  Hall,  2  McCord  Ch.  274 ;  Smith  v. 
Smith,  1  Rich.  Eq.  130,  133  ;  Hatcher  v.  Hatcher,  1  McMullan  E(].  311,  318  ;  Davis 
V.  Moore,  9  Rich.  215 ;  Anthony  v.  Leftwich,  3  Rand.  238,  247,  277 ;  White  v. 
Watkins,  23  Mo.  423,  428  ;  Phillips  v.  Thompson,  1  Johns.  Ch.  131,  149,  per  Chan. 
Kent  :  "  It  is  well  settled  that  if  a  party  sets  np  part  performance  to  take  a  parol 
agreement  out  of  the  statute,  he  must  show  acts  unequivocally  i-eferring  to  and 
resulting  fi-om  that  agreement ;  such  as  the  party  would  not  have  done  unless  on 
account  of  that  very  agreement  and  with  a  direct  view  to  its  performance;  and 
the  agreement  set  up  must  appear  to  be  the  same  with  the  one  partly  i^erformed. 
There  must  be  no  eciuivocation  or  uncertainty  in  the  case.  The  ground  of  the 
interference  of  the  court  is  not  simply  that  there  is  proof  of  the  existence  of  a 
parol  agreement,  but  that  there  is  fraud  in  resisting  the  completion  of  an  agree- 
ment partly  performed."  These  remarks,  if  intended  to  describe  the  relation 
between  the  part  performance  and  the  contract  alleged,  after  the  terms  of  the 
latter  have  been  fully  disclosed  by  the  parol  evidence,  are  accurate  and  clear;  if 
they  ai'e  intended  to  describe  the  effect  which  must  be  produced  by  the  evidence 
which  is  given  simply  to  jarove  the  acts  of  part  performance,  without  reference  to 
any  further  evidence  dii-ected  expressly  to  the  agreement,  they  are  too  strong 
and  in  fact  require  an  impossibility.  Also,  Anderson  v.  Chick,  1  Bailey  Eq.  118, 
124 ;  Hood  v.  Bowman,  Freeman  Ch.  290,  293  ;  Stoddert  v.  Tuck,  4  Md.  Ch.  475  ; 
5  Md.  18 ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72 ;  Reese  v.  Reese,  41  Md.  554  ;  Lester 
V.  Kinne,  37  Conn.  9 ;  Semmes  v.  Worthington,  38  Md.  298 ;  Morgan  v.  Bergen,  3 
Neb.  209  ;  Horn  v.  Ludington,  32  Wise.  73 ;  Pierce  v.  Catron,  23  Gratt.  588 ; 
Billingslea  v.  Ward,  33  Md.  48  ;  Knoll  v.  Harvey,  19  Wise.  99 ;  [Williams  v.  Mor- 
ris, 95  U.  S.  444  ;  Wallace  v.  Rappleye,  103  111.  229 ;  Boozer  v.  Teague,  27  S.  C. 
348;  Vreeland  v.  Vreeland  (N.  J.  E(i.),  31  Atl.  Rep.  3  (May  21,  1895)  ;  Shahan  r. 
Swan  (Ohio),  2G  N.  E.  Rep.  222  ;  Sutton  v.  Myrick,  39  Ark.  424  ;  Campbell  v. 
Fetterman,  20  W.  Va.  398  ;  Abbott  v.  Baldwin,  61  N.  H.  583  ;  BrowTi  v.  Hoag,  35 
Minn.  373.]  And  it  has  been  said  that  the  part  performance  must  give  a  mutual 
right  to  enforce  the  contract.  Smith  v.  McVeigh,  3  Stockt.  239.  But  this  cannot 
easily  be  reconciled  with  the  rule  given  ante  in  §  105. 
158 


PART  PERFORMANCE.  155 

that  acts  which  do  not  unmistakably  i)oint  to  a  contract,  existing- 
between  the   parties  or  which   can  be  reasonably  accounted  for  in 

some  other  niauuor  than  as  having  been  done  in  pursuance  of  sudi  a 
contract,  do  not  constitute  a  part  performance  sufficient  in  any  case  to 
take  it  out  of  the  operation  of  tlie  statute,  even  tliougli  a  verbal  agree- 
ment luis  actually  been  made  betwecMi  the  parties.  It  is  for  this 
reason,  among  others,  that  payment  of  the  purchase-price,  in  wliole  or 
in  part,  is  not  of  itself  a  fiufficieut  performance  to  obviate  the  statute, 
because  the  mere  payment  of  money  by  one  man  to  another  does  not, 
in  the  ordinary  course  of  human  conduct,  indicate  the  existence  of  a 
contract  between  them ;  the  fact  of  such  payment  is  reasonably 
explicable  in  many  other  ways  than  as  having  been  done  in  pursu- 
ance of  a  contract. (1)  For  a  like  reason,  the  mere  possession  of  the 
premises  by  a  tenant  continued  after  the  expiration  of  his  term,  is  not 
a  sufficient  part  performance  of  a  verbal  contract  to  renew  the  lease  or 
to  convey  the  land,  because  such  possession  may  be  as  reasonably  and 
naturally  explained  by  his  holding  over  as  by  an  agreement  to  renew 
or  to  convey ;  in  other  words,  it  does  not  unequivocally  point  to  the 
existence  of  a  contract  between  the  parties,  but  is  referable  to  another 
cause. (2)  The  rule  is  general  in  its  application  and  fundamental  in 
principle,  that  acts  which  are  referable  to  something  else  than  the 
verbal  agreement,  and  which  may  be  ordinarily  otherwise  accounted 
for,  do  not  constitute  a  sufficient  part  performance  of  it.(;]) 

(1)  Dale  V.  Hamilton,  5  Ha.  369,  per  Shadwell,  V.  C.  ;  Buckmaster  ti.  Harrop, 
7  Ves.  341  ;  Coles  v.  Trecothick,  9  Ves.  234 ;  Allen's  Estate,  1  Watts  &  S.  3S3  ; 
Kidder  v.  Barr,  35  N.  H.  235  ;  Underbill  v.  Allen,  18  Ark.  4GG  ;  Hart  v.  Mc.Clellan, 
41  Ala.  251  ;  Hyde  v.  Cooper,  13  Rich.  E(i.  250. 

(2)  "Wills  V.  Stradling',  3  Ves.  381,  i)er  Lord  Loughborough,  Cli.  :  "  As  to  the 
possession  in  the  case  of  a  tenant,  who  of  course  continues  in  possession,  unless  he 
has  notice  to  quit,  the  mere  fact  of  his  continuance  in  possession  would  not  weigh. 
The  delivery  of  possession  by  a  person  having-  possession  to  the  person  claiming' 
under  an  agreement  is  a  sti-ong  and  marked  circumstance  ;  but  the  mere  holding 
over  by  the  tenant,  which  he  will  do,  of  course,  if  he  has  no  notice  to  cpiit,  wnuld 
not  of  itself  take  the  case  out  of  the  statute,  or  even  call  for  an  answer."  Morphett 
D.  Jones,  1  Sw.  181 ;  Johnston  v.  Glancy,  4  Blackf.  94,  99 ;  Anthony  v.  Leftwich, 
3  Rand.  238,  256 ;  Cole  v.  Potts,  2  Stockt.  67 ;  Workman  v.  Guthrie,  5  Ca-sey, 
495,  572;  [Recknagle  v.  Schmaltz,  72  la.  63.] 

(3)  Duvall  ?).  Myers,  2  Md.  Ch.  401.  For  example,  where  a  tenant  during  the 
continuance  of  his  term  makes  improvements,  these  will  not  be  taken  as  i)ai-t  jn-r- 
formance  of  a  verbal  contract  to  sell  and  jmrchase  the  premises  between  himself 
and  the  lessor,  because  they  are  as  natui-ally  referable  to  his  i-ight  and  interest 
under  the  lease.  West  v.  Flannagan,  4  Md.  36.  And  acts  which  a  tenant  was 
bound  or  pei-mitted  to  do  under  his  lease,  cannot  be  a  sufficient  jiart  performance 
of  a  i^arol  agreement  to  renew.  Bryne  v.  Romaine,  2  Edw.  Ch.  445,  446.  Where 
the  owners  of  adjacent  lots  verbally  agreed  that  each  would  build  on  the  same  line 
at  a  certain  distance  back  from  the  street,  and  one  of  them  erected  his  building 
upon  the  line,  this  act  was  held  not  to  constitute  a  part  performance  of  the  con- 
tract, since  it  might  as  well  have  been  done  without  an  agreement,  and  did  not 
therefore,  unequivocally  point  to  the  existence  of  any  agreement  between  the  par- 

159 


156  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

(Sec.  109.  Finally,  the  acts  of  part  performance  must  not  only  be 
done  in  pursuance  of  the  agreement — that  is,  must  be  accounted  for 
only  on  the  supposition  of  its  existence,  but  they  must  also  be  done 
in  execution  of  the  contract  alleged,  and  for  the  purpose,  so  far  as 
they  go,  of  carrying  it  into  effect.  If  a  plaintiff  should,  relying  upon 
a  verbal  agreement,  and  with  the  defendant's  knowledge,  do  some- 
thing prejudicial  to  hiuisielf  in  a  manner  and  to  an  extent  not  suscep- 
tible of  compensation  in  damages,  but  unconnected  with  that  agree- 
ment and  not  in  execution  of  its  provisions,  this  would  fall  far  short  of 
being  the  part  performance  required  by  the  rule,  in  order  to  admit  tlie 
remedial  jurisdiction  of  equity. (1)  This  requirement  is  often  con- 
foaucled,  by  the  cases  and  by  text  writers,  with  the  one  last  discussed ; 
but  there  is  a  plain  and  wide  diiference  between  acts  done  in  pursu- 
ance of  an  agreement — that  is,  because  of  it,  relying  upon  it,  accounted 
for  by  its  existence,  and  acts  done  in  execution  of  it.  All  acts  done 
in  execution  of  a  contract  are,  of  course,  done  in  pursuance  of  it ;  but 
the  converse  of  this  proposition  is  by  no  means  true.  We  are  now 
pi'epared  to  apply  these  general  principles  by  determining  what 
particular  acts  do  or  do  not  constitute  a  part  performance. 
The  particular  acts  which  do  or  do  not  amount  to  a  suiiici- 
ent  part  performance. 

Sec.  110.  Third.  In  the  discussion  of  this  section  I  shall  briefly 
enumerate   those   species   of  acts  which,  it  is  well  settled,  do  not 

ties.  Wolfe  v.  Fi-ost,  4  Sandf.  Ch.  72  ;  and  see  Brennan  v  Bolton,  2  Dr.  &  W,  349  ; 
Frame  v.  Dawson,  14  Ves.  386  ;  German  v.  Machin,  6  Paig-e,  289,  293 ;  [Emmel  v. 
Hayes,  102  Mo.  186.  In  Hunt  v.  Lipp,  (Neb.);  46  N.  W.  Rep.  632  (Sept. 
30,  1890),  the  deposit  on  an  otherwise  imoccupied  town  lot  of  a  quantity  of  building: 
materials  and  a  small  tool-house  from  which  portions  thereof  were  taken  from 
time  to  time  for  use  elsewhere,  did  not,  it  was  held,  point  unmistakably  to  a  con- 
tract for  the  jiurchase  of  the  lot.  J 

(1)  Most  of  the  cases  cited  mi  tier  the  last  paragraph,  §  108,  are  also  authority 
for  this  rule.  Gunter  v.  Halsey,  Ambl.  586  ;  Buckmaster  v.  Harrop,  7  Ves.  341  ; 
Morphett  v.  Jones,  1  Sw.  181  ;  Whitbread  v.  Brockhurst,  1  Bro.  C.  C.  417  ;  2  V. 
&  B.  154,  n.  ;  Meynell  v.  Surtees,  3  Sm.  &  Gift'.  101  ;  Farrall  v.  Davenport,  3 
Gift".  363;  Frame  ii.  Dawson,  14  Ves.  386;  Brennan -w.  Bolton,  2  Dr.  &  W.  349; 
Ci-ocker  v.  Hig'iirins,  7  Conn.  342  ;  Harris  v.  Knickerbacker,  5  Wend.  638 ;  Jervis 
?i.  Smith,  1  Hoff.  Ch.  470  ;  Lord  V-  Underdunck,  1  Sandf.  Ch.  46  :  Smith  v.  Under- 
dunck,  1  Sandf.  Ch.  579  ;  Byrne  v.  Romaine,  2  Edw.  Ch.  4 1.3 ;  Phillips  v.  Thomp- 
son, 1  Johns.  Ch.  131 ;  Peckham  v.  Bai-ker,  8  R.  I.  17  ;  Davis  v.  Moore,  9  Rich. 
215;  Hatcher  75.  Hatchei-,  1  McMullan  Eq.  311,  318;  Robertson  v.  Robertson,  9 
W.itts,  32,  42  ;  Anthony  v.  Leftwich,  3  Rand.  238,  247,  277 ;  Moore  v.  Small,  7 
Harris,  461  ;  Cox  v.  Cox,  2  Casey,  375  ;  Stoddert  v.  Tuck,  4  Sid.  Ch.  475 ;  5  Md. 
18;  Anderson  v.  Chick,  1  Bailey  Eq.  118,  124;  German  v.  Machin,  6  Paig-e,  289, 
293  ;  Ham  v.  (xoodrich,  33  N.  II.  32  ;  Chesapeake  and  Ohio  Canal  v.  Young-,  3 
Md.  480  ;  Mundorf  v.  Howard,  4  Md.  459 ;  Lester  v.  Kinne,  37  Conn.  9  ;  Gough 
V.  Crane,  3  Md.  Ch.  132;  Duvall  v.  Myers,  2  Md.  Ch.  4:)  I  ;  White  v.  Watkins,  23 
Mo.  423,  428.  [The  princi])le  is  illustrated  in  the  case  of  Graves  v.  Goodthwait, 
153  Mass.  268.  The  plaintift'  and  her  six  sisters  were  tenants  in  common  of  several 
parcels  of  land,  and  the  plaintiff  made  an  oral  agreement  with  them  by  which  she 
was  to  pay  to  each  a  certain  sum,  and  they  severally  were  to  convey  to  her  their 
right  and  title  in  and  to  one  of  these  parcels.  Relying  u})on  each  and  all  of  these 
agi'eeinents,  live  of  the  sisters  released  their  respective  intei-ests  in  the  parcel, 
and  the  stipulated  sums  were  paid  ;  but  the  defendant,  the  i-emaining  sister, 
refused  to  carry  out  her  agreement.  It  was  contended  by  the  iilaintiff  that  she 
had  so  changed  her  position  l)y  relying  on  the  defendant's  promis(^  that  she  could 
not  be  restored  to  her  original  situation,  and  that  the  serious  ])rejudice  which 
would  result  to  her  if  the  delendant  failed  to  conv'ey  was  constructively  a  fraud 
practiced  on  her  by  the  defendant.  Specific  jierformance  wa^  refu'^ed,  on  the 
gi- 1  uid  thiit  th<;  purchase  of  the  rights  of  the  other  sisters,  even  in  reliance  on  the 
defendant's  promise,  was  not  any  part  performance  of  the  contract  with  the 
defendant,  but  was  purelv  a  collateral  matter.  See  also,  in  general,  Steenrod  v. 
R.  R.  Co.,  27  W.  Va.  1 ;  Ridgway  v.  Ridgway,  69  Md.  242.] 

160 


PART   PERFORMANCE.  157 

constitute  a  i)art  performance,  and  dwell  with  more  detail  upon  those 
which  do  or  may  suflice  to  take  a  case  from  out  the  operation  of  the 
statute. 

1.  Acts  done  prior  to  the  contracts,  since  tliey  are  neither  in  pur- 
suance nor  in  execution  of  it,  are  never  a  part  performance  upon 
which  to  base  a  specific  enforcement  of  the  agreement  by  a  court  of 
equity;  (1)  and,  therefore,  possession  taken  when  tlie  neg-otiation 
between  the  parties  began  and  in  anticipation  of  rights  whicli  might 
accrue  from  an  excepted  contract,  is  lield  to  be  unavailing  us  an  act 
of  part  performance. (2) 

2.  Acts  merely  preparatory,  introductory,  or  ancillaiy  to  the 
agreement,  are  not  a  part  i)erformance,  for  two  reasons.  1.  These 
acts,  although  the  may  be  subsequent  to  the  agreement,  and  in  conse- 
quence thereof  are  not,  from  their  very  nature,  done  in  execution  of 
it,  or  for  the  direct  purpose  of  carrying  it  into  effect.  2.  ^uch  acts 
are  generally  performed  by  one  party  without  the  other's  knowledge  ; 
they  do  not  so  change  the  plaintiff's  condition  that  a  refusal  to  com- 
plete would  work  a  virtual  fraud  upon  him,  and  they  do  not  unequiv- 
ocally point  to  a  completed  contract  between  the  parties,  but  only 
indicate,  at  most,  the  pendency  of  a  negotiation  or  treaty  between 
them.  It  is  fully  established,  under  this  rule,  that  the  following  and 
other  analogous  acts  by  or  on  behalf  of  the  plaintiff'  are  not  a  part  per- 
formance to  take  a  verbal  contract  out  from  the  operation  of  the  stat- 
ute ;  delivering  abstracts  of  title ;  giving  instructions  for  a  lease ; 
giving  orders  for  the  drawing  of  conveyances  and  putting  title  deeds 
into  an  attorney's  hands  for  that  purpose  ;  the  taking  notes  and  pre- 
paring a  conveyance  by  an  attorney ;  visiting  and  examining  the 
land  in  question ;  measuring  the  land  ;  employing  surveyors  to  value 
the  timber  on  the  land ;  appointing  appraisers  to  value  the  land  or  to 
value  stock  ;  valuations  actually  made ;  drawing  up,  executing,  and 
recording  deeds  of  conveyance  by  the  vendor  which  had  not  been 
accepted  by  the  purchaser.(3)     The  same  rule  has  been  applied  to 

(1)  Parker  v.  Smith,  1  Coll.  C.  C.  608,  623. 

(2)  Dougan  v.  Blocker,  12  Harris,  28  ;  Eckert  v.  Eckert,  3  Peiin.  332. 

(3)  Cole  V.  White,  cited  1  Bi-o.  C.  C.  409  ;  Whitbreml  v.  Brockhui-st,  1  Bro.  C. 
C.  412 ;  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  5r>9  ;  Reddinjr  v.  Wilkes,  3  Bro.  C.  C. 
400 ;  Clerk  v.  Wright,  1  Atk.  12 ;  Hawkins  v.  Ilohnes,  1  P.  Wins.  770 ;  Pembroke 
V.  Thorpe,  3  Sw.  437,  n.;  Cooke  v.  Toniha,  2  Anst.  420  ;  Montacute  v.  Maxwell. 
Stra.  236  ;  Pophain  v.  Eyre,  Loft't.  786  ;  Cooth  v.  Jackson,  6  Ves.  12,  17,  41  ;  Frame 
V.  Dawson,  14  Ves.  386  ;  Stokes  v.  Moore,  1  Cox,  219  ;  Earl  of  Gleng-all  v.  Barnard, 
1  Keen,  769  ;  Thynne  v.  Eai-1  of  Giengall,  2  CI.  &  Fin.   (N.   S.),   131 ;  Phillii.s  v. 

161 


158  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

other  cases  in  which  the  acts,  though  not  resembling  those  described 
in  foregoing  list,  were  held  to  be  merely  preparatory,  and  not  done 
in  execution  of  the  verbal  contract  sought  to  be  enforced.  Thus,  an 
appropriation  of  money  made  for  the  purpose  of  carrying  out  the 
intended  i)urchase  by  the  plaintiff,  is  not  a  part  performance  of  a 
verbal  contract  of  sale  ;(1)  and  defendant  having  verbally  agreed  to 
convey  land  to  the  plaintiff  when  the  latter  should  obtain  a  release  of 
a  right  from  a  third  person,  the  i)laintiff  procured  the  release  by  the 
payment  of  a  large  sum  in  consideration  therefor,  but  this  act  was 
held  to  be  merely  preparatory  to  the  agreement,  and  not  in  part  per- 
formance ;(2)  and  where  the  purchaser,  in  a  verbal  contract  for  the 
sale  of  land,  had  bound  himself  to  lease  the  premises  to  a  third  per- 
son, his  making  the  lease  does  not  constitute  a  part  performance. (8) 

Sec.  111.  3.  When  a  verbal  contract  is  made  in  relation  to  or  upon 
the  consideration  of  marriage,  the  marriage  alone  is  not  a  part  per- 
fonoiance  upon  which  to  decree  a  specific  execution.  This  rule,  which 
is  firmly  established,  is  based  upon  the  express  language  of  the  statute. 
A  promise  made  in  anticipation  of  a  marriage,  followed  by  the  mar- 
riage, is  the  exact  case  contemplated  by  the  statute.  It  is  plain  that 
the  marriage  adds  nothing  to  the  very  circumstances  described  by 
the  statutory  provision  which  makes  a  writing  essential ;  in  fact,  until 
the  marriage  takes  place,  there  is  no  binding  agreement  independent 
of  the  statute,  so  that  the  marriage  itself  is  a  necessary  part  of  every 
agreement  made  upon  consideration  of  it,  which  the  legislature  has 
said  must  be  in  writing. (4)  In  a  very  few  of  the  states  this  clause  is 
entirely  omitted  from  the  statute  of  frauds,  and  of  course  the  rules 
derived  from  its  interpretation  do  not  prevail  therein. (5)    The  cases 

Edwards,  33  Beav.  440  ;  Gratz  v.  Gratz,  4  Rawle,  411 ;  Reeves  v.  Pye,  1  Cranch, 
C.  C.  219  ;  Givens  v.  Calder,  2  Dessau.  Ch.  171  ;  Smith  v.  Smith,  1  Rich.  Eq.  130, 
138;  [Nibert  v.  Baghurst,  47  N.  J.  Eq.  201  ;  Lydick  v.  Holland,  83  Mo.  703,  707]. 

(1)  East  India  Company  v.  Nuthumbadoo  Veerasawmy  Moodelly,  7  Moo.  P.  C. 
C.  482. 

(2)  O'Reilly  v.  Thompson,  2  Cox,  271. 

(3)  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  .559,  and  see  Whaley  v.  Bagnel,  1  Bro.  P. 
C.  345  ;  compare  these  cases  with  Parker  v.  Smith,  1  Coll.  C.  C.  608.  [See,  also, 
in  illustration  of  the  text,  Lydick  v.  Holland,  83  Mo.  703.] 

(4)  Taylor  v.  Beech,  1  Ves.  Sen.  297,  per  Lord  HAftDWiCKE ;  Dundas  v.  Dutens, 

1  Ves.  199  ;  2  Cox,  235,  per  Lord  Thurlow  ;  Lassence  v.  Tierney,  1  McN.  &  G. 
551 ;  Warden  v.  Jones,  2  J  Beav.  497  ;  2  De  G.  &  Jo.  76  ;  Cooper  v.  Warrnold,  7  W. 
R.  402  ;  Caton  v.  Caton,  L.  R.  1  Ch.  137  ;  L.  R.  2  H.  L.  127 ;  McAskie  v.  McCay, 

2  I.  R.  Eq.  447;  Montacute  v.  Maxwell,  1  P.  Wms.  618;  Redding-  ti.  Wilkes,  3 
Bro.  C.  C.  400,  401 ;  Finch  v.  Finch,  10  Ohio  St.  501  ;  [McAnnulty  v.  McAnnulty, 
120  111.  26  ;  Welch  v.  Whelpley,  62  Mich.  15  ;  Manning  v.  Riley  (N-  J.  Eq.),  27 
Atl.  Rep.  810 ;  Hannon  n.  Hounihan,  85  Va.  429  ;  Johnstone  v.  Mappin,  60  L.  J., 
Ch.  241 ;  Adams  v.  Adams,  17  Oreg.  247.] 

(5)  See  ante,  §  70. 

162 


PART  PERFORMANCE.  159 

where  other  acts  in  couuectioTi  with  marriage  may  be  suflicieut  to 
render  the  contract  enforceable,  are  postponed  to  a  subseqnent  para- 
graph. (1) 

iSec.  112.  4.  Payment  of  the  pnrchase-price,  either  in  wliole  ov  in 
part,  is  not  an  act  of  parr,  performance  witliin  the  f«)regoing  principles, 
and  does  not  take  a  verbal  contract  out  fi-om  the  operation  of  the 
statute.  (2)  The  statute  of  frauds  of  Iowa,  liowever,  in  express  terms, 
declares  that  the  acceptance  of  the  i)urchast!-{)rice,  or  a  part  thereof, 
by  a  vendor  of  land,  sliall  make  a  verbal  contract  of  sale  binding — 
shall  in  effect  be  equivalent  to  a  written  memorandum. (:})  In  the 
earliest  cases  it  was  held,  that  the  payment  of  a  considerable  portion 
of  the  purchase-price  would  take  a  verbal  contract  for  the  sale  of  land 
out  from  the  o[ieratiou  of  the  statute,  while  the  jiayment  of  a  small 
portion  would  not  have  that  effect  ;(4)  but  this  distinction  was  long 
ago  rejected  as  being  based  upon  no  sound  principle. (5) 

(1)  See  post,  §  133 

(2)  Clinani).  Cooke,  1  Sch.  &  Lef.  40;  O'Horlihv  o.  Hedges.  1  Sch.  &  Lef.  123; 
Huarhes  o.  Morna,  2  De  G.  M.  &  Q.  35(3  ;  Leak  v.  Morru-e,  2  Ch.  Cay,  131);  Alsopp 
V.  Patten,  1  Vern.  472  ;  Lord  Peng-all  v.  Ross,  2  Ei^.  Caa.  Abr.  46.  pi.  12  ;  Seatriiod 
V.  Meale,  Pi-ec  Ch.  500;  Buckmaster  v.  Harrop,  7  V^ea.  341  ;  Coles  ■i'.  Trecothu  k, 
9  Ves.  2J4  ;  Frame  )'.  Dawson,  14  Ves.  3S8  ;  Ham  v.  Goodri.  h.  33  N  H.  32,  39  ; 
Kidder  0.  Barr,  35  N.  H  235;  Underbill  v.  Allen,  18  Ark.  46G  ^  Thompson  ■»' 
Gould,  20  Pick.  134;  Glass  v.  Hulburt,  102  Mass.  24;  Eaton  7'.  WhOakei.  18 
Conn.  22i\  229  ;  Cole  v.  Potts,  2  Stockt,  67  ;  Allen's  Estate,  1  Watts  &  Serf.'.  38J, 
389  ;  McKee  v.  PJullins,  9  Watts,  85  ;  Parker  v.  Wells.  6  Whart.  153,  161 ;  Gan- 
gwer  V.  Fry,  17  h'a  St.  491  ;  Rankin  v.  Simpson,  7  Harris,  4~1  ;  Jackson  v.  Cut- 
rio-ht,  5  Munf.  308;  Hyde  o.  Cooper,  13  So.  Car.  Eq.  250,  Ander.son  v.  Chick, 
Bailey  Eq.  118  ;  Church  of  the  Advent  o.  Farrow,  7  Rich.  Eq.  378  ;  Giveuu  v. 
Calder,  2  Dessau.  Ch.  174;  Smiths.  Smith,  1  Rich.  Eq  130,  132,  135;  Finucane 
V.  Kearney,  1  Freem.  Ch.  65,  ^^x  Hood  tJ.  Bowman,  1  Freem.  Ch.  290.  294;  black 
V.  Black,  15  Geo.  445  ;  Mialhi  v.  Lassabe,  4  Ala.  712  ;  Hart  v.  McClellan,  41  Ala. 
251;  Garners.  Stubbletield,  5  Tex.  50 1;  Wood -w.  Jones.  35  Tex.  04;  Wilber  «. 
Paine,  1  Hamm  (Ohio)  252 ;  Sites  v.  Keller.  6  Hamin.  (Ohio)  528  ;  Letcher  V 
Cosby,  2  A.  K.  Marsh.  100  ;  Johnston  v.  Glancy,  4  Blackf.  94  ;  Parke  v.  Leewright, 
20  Mo.  85  ;  Purcell  o.  Miner.  4  Walk  513;  Thompson t).  Tod.  Pet.  C.  C.  38J  ;  Cronk 
V.  Trumble,  66  111.  428  ;  Wood  v.  Jones,  35  Tex.  64  ;  Lanz  v.  M(  Laughlin,  14  Minn. 
72;  Cuppvw.  Hixon,  29  Ind  522;  [Nil)ertt).  Baghui-st,  47  N.  J.  Eq.  210;  Gal- 
lagher V.  Gallagher.  31  W.  Va.  9,  13;  Dull  v.  Ho]ikins,  33  Ftul.  Rep.  .^.99  ;  Town- 
send  V.  Fenton,  30  Minn.  528;  32  Minn.  482;  Boulder  Valley  Ditch  Mining,  etc., 
Co.  V.  Farnham  (Mont.)  29  Pac.  R  277  (Mar.  21,  '92)  ;  Forrester  v.  Floi-es.  64 
Cal.  24  ;  Salfield  v.  Sutter  Co..  L.  I.  &  R  Co  ,  94  Cal.  546  5  Fulton  v.  Jansen.  99 
Cal.  567  ;  Jourdain  v.  Fox  (Wis  ),  02  N.  W.  Rep.  930  (April  3.  1895) ;  Bi-own  v. 
Pollard  (Va.),  17  S.  E.  6;  Miller  y.  Lorentz  (W.  Va.),  19  S.  E.  391;  Felton  r. 
Smith,  84  Ind.  485;  Guthi-ie  «.  Anderson.  47.  K.an.  383;  Goddai'd  r.  Donaha,  42 
Kan.  754;  Minns  ?i.  Chandler,  21  S.  C.  480 ;  Baker  u.  Wiswell,  17  Neb.  5J.  58; 
Lewis  V.  Montgomei-y,  B.  k.  S.  Ass..  70  Ala  276  ;  Neal  v.  Gregory,  19  Fla.  350  : 
Webster  1).  Blodgett,  59  N.  H.  120  (payment  of  rent  not  jiart  performance  of 
agreement  to  lease)  ;  Washington  Brewei-y  Co.  v.  Cairy  (Md.),  24  Atl.  Reji.  151 
(agreement  to  give  a  mortgage  in  consideration  of  a  loan,  the  latter  not  sufficient, 
part  performance) ;  McPher.son  v,  Wiswell,  10  N('b.  625.] 

(3)  See  ante,  §  90;  Fairbrother  ?>.  Shaw,  4  Iowa,  570;  [Pressleyu  Roe  (Iowa). 
.50  N.  W.  Rep.  ,44;  Nan  d.  Jackman,  .58  Iowa,  359;  Rook  v.  Jimeson,  07  Iowa. 
202  ;  Query  v.  Liston  (la.),  00  N.  W.  Ro]).  524  (Oct.  20,  1894),  (what  does  not 
amount  to  payment  undei"  the  Iowa  statute)  ,  Franklin  v.  Tuckerman,  08  Iowa, 
.572  (ser\aces  rendered) ;  Stern  v.  Ny.songer,  09  Iowa,  513  (same).] 

(4)  Lacon  v.  Merlins,  3  Atk.  4  per  L(n'd  ILvrdwickk,  who  held  generally  that 
part  payment  was  a  goo<i  pai-t  pci-formance.  Child  v.  Comber,  3  Svv.  423;  n. ; 
Owen  ?)  Davies,  1  Ve.s.  Sen.  82;  Hal(;s  v.  Van  Berchem,  2  Vera.  018;  Skett  v. 
Whitmore,  Freem.  V\\.  281  ;  Main  v.  Melbourn.  4  Ves.  720,  724,  per  Lord  Roslyn. 
who  held  as  stated  in  the  text.  Wctmore  r.  White.  2  Caine's  Gas.  87.  109  ;  Town- 
send  ?».  Houston,  1  Harring.  532.  54  L  Jones  v.  Peterman,  3  Serg.  &  R.  543; 
Frieze  v.  Glenn,  2  Md.  Ch.  301  ;  llarwood  v.  Jones,  10  Gill  &  J.  404. 

(5)  See  cases  cited  above  in  the  first  note  under  §  112. 

163 


160  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

Reasons  of  this  rule. 

8ec.  113.  Before  considering  any  special  applications  of  this  rule, 
or  exceptions  to  it,  the  grounds  upon  which  it  rests  must  be  stated 
and  briefly  explained.  Three  different  reasons  for  it  have  been 
advanced  by  the  cases.  The  first  is  drawn  entirely  from  the  language 
of  the  statute.  Since  the  clause  concerning  the  sale  of  goods  and 
chattels  expressly  provides  that  the  receipt  of  the  price,  or  a  part 
thereof,  shall  render  a  verbal  contract  binding,  it  is  argued  that,  by 
omitting  any  similar  provision  from  the  section  relating  to  lands,  the 
legislature  has  clearly  indicated  its  intent,  that  such  a  payment  shall 
not  avail  in  the  case  of  a  verbal  contract  for  the  sale  of  real  estate. 
This  explanation  of  the  doctrine  was  first  made  by  Lord  Redesdale, 
and  has  been  accepted  as  satisfactory  by  some  other  judges.(l)  The 
second  reason  has  already  been  mentioned.  Payment  of  money  is  an 
act  which  may  be  referred  to  so  many  different  causes,  that  it  does  not 
need  the  existence  of  a  contract  to  account  for  it ;  it  does  not  une- 
quivocally point  to  a  contract  between  the  parties,  nor  necessarily 
appear  to  have  been  made  in  pursuance  of  an  agreement.  The 
essential  condition,  therefore,  fails  for  the  introduction  of  parol  evi- 
dence by  which  to  establish  the  verbal  contract ;  the  primary  element 

(1)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  40,  per  Lora  Redesdale  .  "It  has  always 
been  considered  that  the  payment  of  money  is  not  to  be  deemed  part  performance 
to  take  a  case  out  of  the  statute.  Seagood  v.  Meale,  Prec.  Ch.  560,  is  the  leading- 
case  on  that  subject ;  there  a  guinea  was  paid  by  way  of  earnest,  and  it  was 
agreed  clearly  that  it  was  of  no  consequence  in  case  of  an  agreement  touching 
lands.  Now,  if  payment  of  fifty  guineas  could  take  a  case  out  of  the  statute, 
payment  of  one  guinea  would  do  so  equally,  for  it  is  paid  in  both  cases  as  part 
payment,  and  no  distinction  can  be  drawn.  But  the  great  reason,  as  I  think,  why 
part  payment  does  not  take  such  an  agreement  out  of  the  statute  is,  that  the 
statute  has  said  that  in  another  case,  viz.,  with  respect  to  goods,  it  shall  operate 
as  part  performance.  And  the  courts  have,  therefore,  considered  this  as  exclud- 
ing agreements  for  lands,  because  it  is  to  be  inferred  that  when  the  legislature 
said  it  should  bind  in  the  case  of  goods,  and  were  silent  as  to  the  case  of  lands, 
they  meant  that  it  should  not  bind  in  the  case  of  lands."  See,  also,  O'Herlihy  v. 
Hedges,  1  Sch.  &  Lef.  123;  Watt  v.  Evans,  4  Y.  &  C.  Ex.  579  ;  Lord  Pengall  v. 
Ross,  2  Eq.  Cas.  Abr.  46,  pi.  12  ;  Lane  v.  Shackford,  5  N.  H.  132-134.  An  early 
case  in  Delaware,  Townsend  v.  Houston,  1  Harring.  532,  proceeded  entirely  upon 
this  view,  and  because  the  statute  of  that  state  contained  no  provision  concerning 
goods  and  chattels,  similar  to  §  17  of  the  English  act,  it  held  that  part  payment 
of  the  price  constituted  a  part  performance  of  a  verbal  agreement  for  the  sale  of 
land.  But  the  whole  argument  is  clearly  based  upon  a  misconception.  The 
statute  of  frauds  does  not  say  that  payment  shall  operate  as  a  part  performance  in 
the  case  of  goods ;  it  makes  such  payment  equivalent  to  a  memorandum  ;  and 
according  to  the  equitable  theory,  part  performance  is  not  considered  as  a  substi- 
tute for  the  written  memorandum  ;  when  admitted  at  all  it  completely  displaces 
the  statute,  it  creates  such  a  state  of  circumstances  that  the  application  of  the 
statute  would  be  fraudulent. 
164 


PART   PEliFORMAiWE.  161 

of  the  equitable  theory  of  part  performance  is  wanting. (1)  Tlie  third 
ground,  and  perhaps  the  one  most  satisfactory,  is,  that  a  payment  of 
money  by  the  pUiintitt*  is  not,  in  general,  an  act  which  renders  it  a 
fraud  upon  him  if  the  defendant  refuses  to  comi)lote  the  contract.  It 
does  not  so  cliange  his  situation  as  to  render  a  legal  remedy  either 
impracticable  or  inadequate  ;  he  can  recover  back  the  amount  by  an 
action  at  law,  and  thus  be  restored  to  Ids' original  position.  Even  the 
inability  of  the  defendant  to  repay  the  money  by  reason  of  his  own 
bankruptcy  or  insolvency,  does  not,  in  this  respect,  alter  the  relations 
of  the  parties  so  as  to  modify  the  rule,  because  there  being  nothing 
intrinsically  fraudulent  in  the  transaction,  this  circumstance  is  not  a 
sufficient  ground  for  imputing  to  the  defendant  the  wrongful  intent, 
which  alone  furnishes  an  occasion  for  the  interference  of  equity  to 
enforce  the  verbal  agreement. (2) 

WTien  the  rule  does  not  apply. 

Sec.  114.  Whenever  the  foregoing  reason  fails — Wlien  it  is  impossi^ 
ble  to  restore  the  plaintiff  to  his  original  position  l)y  any  legal  remedy, 
then  the  fundamental  conditions  of  the  equity  jurisdiction  in  case  of 
part  performance  are  fulfilled,  and  a  payment  is  sufficient  to  take  the 
verbal  contract  out  of  the  statute  of  frauds.  These  special  circum- 
stances can  hardly  arise  when  the  plaintiff  luis  simply  paid  the  pur- 
chase-price of  land  in  money  either  wholly  or  partially  ;  they  rather 
occur,  if  at  all,  when  the  consideration  of  the  agreement  consists  in 
■work,  labor  and  services  personally  done  and  rendered  by  the 
plaintiff  himself,  or  procured  to  be  done  and  rendered  and  paid  for  by 
him.  In  such  a  case,  if  the  value  of  the  services  can  be  ascertained  with 
reasonable  accuracy  in  an  action  at  law,  and  adequately  compensated 
by  a  recovery  of  damages,  neither  the  services  themselves  nor  the  pay- 
ment for  them  will  avail  as  a  part  performance  of  the  verbal  agree- 
ment.(3)     But  if  the  services  are  of  such  a  peculiar  character  that  it  is 

(1)  See  ante,  §  107. 

(2)  See  cases  cited  ante,  §  104  ;  [Townsend  v.  Fenton,  32  Minn.  482  ;  cf.  Jamison 
V.  Dimock,  95  Pa.  St.  52.]  Lord  Rkdesdale  also  gave  this  reason  for  the  i-ule  in 
Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  41.  After  laying-  down  the  g-cneral  doctrine, 
"  that  nothing-  is  to  l>e  considered  as  a  part  perfoi-niance  wliich  does  not  put  the 
party  into  a  situation  that  is  a  fraud  upon  him,  unless  the  ag-reement  is  per- 
formed," he  added,  "  i)ayment  of  money  is  not  i)art  iierformance,  for  it  may  be 
repaid,  and  then  the  jjai-ties  will  be  just  as  they  wen*  before,  especially  if  repaid 
with  interest.  It  does  not  put  a  man,  who  has  parted  with  his  money,  into  the 
situation  of  a  man  ag-ainst  whom  an  action  may  be  brought,"  a«  is  the  case;  with 
a  vendee  who  has  taken  possession  under  a  mere  verbal  .ag-reemciit. 

(3)  South  Wales  R'y  Co.  v.  Wythes,  1  K.  &  J  ISO;  Fi-ame  v.  l):iwson,  14 
Ves.  386;  O'Reilly  r.  Thompson,  2  Cox,  271;  Rhodes  ■»'.  llhoch-s,  H  Sandf.  Ch. 
279,  284;  [Peters  v.  Dickinson  (N.  11.),  32  Atl.  Rep.  154  (March  17,  1893)  |.  In 
Frame  v.  Dawson,  14  Ves.  38(5,  Sir  Wm.  Grant  thought  th;it  money  exjiended 
in  rei)airs  came  within  this  description,  and  could  be  compensated  by  damages. 

1G5 


162  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

impossible  to  estimate  their  value  by  any  pecuniary  standard,  and  it 
is  evident  that  the  parties  did  not  intend  to  measure  them  by  any 
such  standard,  then  the  plaintiff,  after  the  performance  of  these  ser- 
vices, could  not  be  restored  to  the  situation  in  which  he  was  before,  or 
be  compensated  by  any  recovery  of  legal  damages.  Under  these 
circumstances,  the  rendition  of  the  services,  or  the  procuring  them  to 
be  rendered,  is  a  part  performance  of  the  verbal  agreement,  and  the 
case  is  quite  aimlogous  to  those  in  which  outlays  are  made  for  im- 
provements by  a  vendee  cr  lessee  under  a  parol  contract. (1)  This 
principle  is,  at  bottom,  the  same  as  that  upon  which  the  courts  have 
proceeded,  especially  in  a  series  of  recent  English  decisions,  in  specifi- 
cally enforcing  certain  agreements  for  continuous  acts  of  labor  and 
services,  and  construction  of  works  where  the  legal  remedy  of  dam- 
ages for  their  breach  is  impracticable.  It  has,  also,  been  applied  under 
analogous  circumstances,   where  the  plaintiff  has  not,  indeed,  made 

so  that  the  expenditure  was  not  a  sufficient  part  performance.  It  has  been  settled, 
however,  that  outlays  in  improvements,  repairs  and  altertations  constitute  a  good 
part  perfonnance  of  verbal  contracts  to  sell  or  lease  lands.  See  ^Jfw^  §§  126-132 
In  Edwards  v.  Estellc,  48  Cal.  194,  a  surveyor  and  another  person  made  a  vei'bal 
contract,  by  which  the  surveyor  agreed  to  search  for  and  survey  certain  swam]) 
lands,  and  the  other  party  agreed  to  pay  the  tirst  installment  of  the  purchase 
jDrice,  procure  a  certificate  of  purchase,  and  then  convey  one-half  of  the  land  to 
the  surveyor.  The  latter  made  the  search,  found  the  lands  and  surveyed  them  ; 
and  these  acts  were  held  to  constitute  no  part  performance,  which  took  the  con- 
tract out  of  the  statute  of  frauds.  The  court  said,  per  Rhodes,  J.  (p.  196) :  "  Thei-e 
are  two  pi-opositions  ujion  which  the  cares  a;  e  very  fully  agreed  ;  tirst,  that  the 
payment  of  pui-chase-money  will  not  be  i-egarded  as  pai-t  performance  ;  and 
second,  that  the  acts  of  part  performance  must  be  such  that  it  would  be  a  fraud 
ujion  him  for  the  other  party  to  refuse  performance  on  his  part.  The  term  jiur- 
chase-money,  a3  employed  in  the  proposition  above  stated,  comprehends  the  con- 
sideration, wheLher  it  be  money  or  property,  or  services,  for  which  the  lands  are 
to  be  conveyed,  z.n  1  i3  not  limited  to  money  alone.  Hei-e  the  services  to  be  per- 
formed by  the  plaintiff  were  the  consideration  for  which  the  one-half  of  the  lands 
were  to  be  conveyed  to  him ;  and  hence  the  performance  of  those  services  did 
not  constitute  a  sufficient  part  performance  within  the  meaning  of  the  equitable 
rule.  There  is  no  ground  for  saying  that  the  plaintiff,  by  his  alleged  acts  of  part 
performance,  has  been  placed  in  such  a  position  that  the  refusal  of  the  defendants 
to  convey  the  one-half  of  the  lands  will  operate  as  a  fraud  upon  him.  The  I'efusal 
to  convey  merely  leaves  him  the  creditoi-  of  the  estate  of  Stewai-t  (the  other  pai-ty 
to  the  contract  who  had  died),  and  full  compensation  may  be  made  for  his  ser- 
vices in  money.  He  is  in  no  worse  position  than  if,  instead  of  rendering  the  ser- 
vices, he  had  advanced  their  value  in  money."  While  this  decision  is  undoubt- 
edly correct,  and  the  reasons  for  it  given  at  the  close  of  the  extract  ai-e  unques- 
tionably sound,  some  of  the  generalizations  concerning  the  consideration,  ought, 
I  think,  to  have  been  expressed  with  more  limitations.  And  see  Ci-onk  •»  Trum- 
ble,  68  111.  428  ;  and  Chastaiu  v.  Smith,  30  Geo.  96.  [For  a  further  discussion  of 
this  subject,  see  Maddis(m  7;.  Alderson,  8  App.  Cas.  467;  Moyei-'s  Appeal,  105 
Pa.  St.  432,  437  ;  Ward  v.  Stuart,  62  Tex.  333  See,  also.  Mills  v  Joiner,  20  Fla. 
479  ;  Wallace  v.  Long,  105  Ind.  522 ;  Iherd  v.  Beavers,  106  Ind.  483 ;  Grant  v. 
Grant,  63  Conn.  530;  Ellis  v.  Cai-v,  74  Wis.  176 ;  Crabill  v.  Marsh,  38  Ohio  St. 
331;  Baldwin  (\  Sqi;ier,  31  Kan.  "283;  Cloud  v.  Greasley  (III.),  17  N  E.  826; 
Gorham  v.  Dodge,  122  III.  528  ;  Pond  v.  Sheehan.  132  111.  312  ;  Townsend  v.  Van- 
derwerker,  20  D.  C.  197;  Devinney  v.  Corey,  5  N.  Y.  Supj?   289  ] 

(I)  Rhodes  ■«.  Rhodes,  3  Sandf.  Ch.  279,  284;  Davison  v  Davison,  2  Beasley, 
246  ;  Van  Duyne  v.  Vi-eeland,  1  Beaslev,  142,  151  ;  Hill  v.  Gomme,  1  Beav.  541  ; 
[Brinton  v.  Van  Cott  (Utah),  33  Pac.  R.'^218  (April,  15,  1893)  ]  Rhodes  ?'  Rhodes 
well  illustrates  the  rule.  A  person  verbally  agreed  to  convey  a  tract  of  land  to 
his  brother,  in  consideration  that  the  latter  should  support,  nurse,  and  take 
care  of  him  during  his  iife-time.  He  was  subject  to  epileptic  fits,  and  the 
brother  faithfully  performed  the  agTeement  on  his  part ;  nursed,  maintained 
and  took  care  of  the  invalid  during  the  rest  of  his  life,  but  did  not  take 
possession  of  the  land  or  do  any  other  act  dii-ectly  affecting  it.     This  contract  was- 

166 


PART  PERFORMANCE.  103 

any  payment,  but  has  done  otlier  aets  in  ])ursuance  of  tlie  verbal 
agreement,  but  not  directly  art'ecling'  its  subject-matter,  wbith  would 
leave  him  without  adeciuate  remedy  unless  the  contract  is  enrorced.(]) 
Payment  of  auction  duty  as  required  by  statute  in  certain  cases  is  not 
a  i)art  performance,  because  it  is  nnide  obligatory,  "and  that  without 
which  there  would  have  been  no  contract,  cannot  be  said  to  be  in  part 
performance  of  the  contract. "(2)  Payment  of  the  ])rice,  although  not 
of  itself  sutlicient  to  achnit  the  equitable  remedy,  is  always  regarded 
as  a  strong  circumstance  in  connection  with  other  acts,  such  as  pos- 
session or  the  making  improvements,  wliich  will  be  discussed  in  tlie 
succeeding  paragraphs. (8) 

speciticiilly  enforced  Jiixiun.-^t  the  heirs  of  the  vendor,  the  conrt  holdinf,'  thiit  the 
sei'vices  i-endei-ed  by  tli<^  jtljiintitf,  or  jirocrnred  to  \h\  rendered  were  undei-  the 
t'ircunisfiince.s,  a  part  pei'foi'niaiice.  Thci  rea.^ons  for  tin;  decit^ion  »)•<>  seen  in  the 
tbllowin,^  extract ;  '•  Payment  of  the  considei'ation  w  ill  not,  in  {rt.ii(>ral,  be  deemed 
snch  a  part  jiei'foi-manee  as  to  relieve!  a  ])ar()l  contract  from  the  f)])ei-ali()n  of  the 
statnte.  IJut  the  I'cason  for  this,  vi/.,  that  in  f^uch  a  ciisi;  the  repayment  of  the 
considerivtion  will  place  the  i)arties  in  the  same  situation  in  which  they  were 
before,  shows  that  the  rvde  ajjplies  to  a  moneyed  consideration  only  If  tht^  con- 
sideration for  the  contract  be  lalior  and  services,  those  may  sometimes  be  esti- 
mated and  their  vahu^  li(piitlated  in  money,  so  as  necessarily  to  make  the  vendee 
whole  on  ]-<!scinding'  the  conti'ac-t.  But  in  a  case  like  this,  where  the  services  to 
be  rendered  were  of  sucli  a  ix'culiar  cha'-acter  that  it  is  impossible  to  estinuite 
their  value  to  the  plaintiff  by  any  ])ecuniary  standai-d.  and  whei-e  it  is  evident  that 
he  did  not  intend  to  ni(uisui'(!  ihem  by  any  snch  standard,  it  is  out  of  the  iiower 
of  any  court,  after  th(»  performance  of  the  services,  to  i-estore  the  jilaintilf  to  the 
situation  in  which  he  was  l>efore  the  contract  was  made,  or  to  compensate  him  in 
damages."  The  principle  of  this  case  is  sound,  and  the  decision  itself  is  in  sti-ict 
conformity  with  the  series  of  later  English  cases,  which  extend  the  remedy  of 
sjiecitic  performance  to  agreements  for  services.  In  Davison  v.  Davison,  .supra, 
services  of  a  son  w'ere  heUl  to  he  a  good  part  performance  of  Viis  fixther's  verbal 
agreemenl  to  leave  him  a  farm  after  the  fathei-'s  death.  [In  Jatlei;  r.  .Jacobson  (C. 
C  A.),  48  Fed.  R(>p.  1>1  ;  s.  c.  4  U.  S,  App.  4,  and  1  C.  C.  A.  R(>p.  11.  \hr  ruh;  of 
the  text  was  i-ecognizcMl,  l)ut  rt^lief  was  denied  on  the  ground  that  the  liill  did  not 
show  a  substantial  discharge  by  the  complainants,  din-ing  the  promisor's  life-time, 
of  the  obligations  which  tin;  agreement  contemplated  were  to  be  discharged. 
The  court  say  (p.  25),  i)er  Tiiaykk,  J. :  "We  are  of  the  opinion  that  a  ccnrlwoidd 
not  be  justilied  in  decrcHung  si)ecilic  ])erformance  in  a  case  like  the  one  at  bar, 
whei-e  l)y  rcrason  of  his  untimely  death  th(»  i)7'omisor  did  not,  in  fact,  enjoy  any  of 
tlx!  pleasures,  benetits  oi*  atlvantag(;s  which  he  hoped  to  7-ealiz(!  from  tlie  society, 
companionship,  or  services  of  his  nieces  [the  c(imi)lainantsj.  Wc  find  no  i)i'ecedent 
t'(ir  decreeing  ^'iHU-itic  jjerfoi-mance  undei"  such  cii'cuinstances.  In  al.'  of  the  ca.ses 
<-alled  to  our  atU'ntion  in  which  relief  was  atlbrdeil,  it  apjieai-s  that  thfc  jiroinisees 
had  substantially  discharged  the  obligations  which  they  had  si^verally  assumed. 
In  most,  if  not  all,  instances  they  had  li\e(l  in  tlu!  promisor's  household  as  mem- 
bei's  of  his  family,  and  had  i-endei-cnl  faithfid  and  affect ioiuite  services  for  a  long 
period  of  years.  It  was  not  i)ossible,  therefore,  to  administer  adecjuate  relief, 
othei'wisi!  than  by  decreeing  si)ecific  perfornuincc."  See,  also,  on  \]n\  genei-al 
subject,  Neel  V  Ncel,  SO  Va.  .^)S4  ;  Thrall  v.  Thrall,  lU)  Wis.  'AY.);  ][crrick  v. 
Starkw.'ather,  54  Ilun,  532;  Chicago,  B.  »S:  Q.  R.  Co  v.  Bov«l,  US  111.  7:5;  Ka.st 
Tennessee.  V  &  (i.  R  Co.  v.  Davis  (Ala.).  S  So.  Rep.  349;  llinkle  v.  Ilinkle,  55 
Ark  .583;  Bro).liv  )?.  Hairan,  12  Pa.  Co.  Ct.  R.  3(55;  Sharkev  v.  McDermott,  01 
Mo.  G47,  (J52;  Wa\-rea  ;).  Warren,  105  111.  508  ;  Bownnin  v   Walford,  80  Va.  213.] 

(1)  Malins  r.  Brown,  4  N  Y  403.  The  j)landiff  had  nnide  no  i)ayment  of  ]mr- 
chase-money,  but  had.  in  i)ursuance  <if  the;  conti-act,  entered  ujxm  transactions 
which  would  eiitad  ui>on  him  an  injui-y  "ot  to  lie  compensated  by  damage,  and 
the  coui-t  dcci-ecd  a  s])ei-itic  jiei-foi'iiiaucc.  (Jcrinau  V.  Machin,  G  Paige,  288  ; 
Dtigan  V.  (iitlintrs.  3  (iiil  138  ;  (ro.'^deu  i\  Turki-i-.  C.  Muiif.  1  ;  Parker  ^\  Smith,  1 
Coll.  C.  C.  tj()8. 

(2)  Buckma.ster  v  llari-op,  7  Ves.  341  ;  13  Ves.  45(5.  In  this  case  it  was  argued 
by  counsel  that  the  ]);i,yment  should  !»'  Indd  a  ])art  pei-foi-nnmce,  becaiise  it  could 
not  be  i-('covered  liack  ;  l)ut  the  roni-t  held  as  stated  in  the  text. 

(3)  [Winchell  V.  Winchell,  100  N.  Y.  1.5{>,  163.  ] 

107 


164  SPECIFIC   FEKIOIiMANCK    OF   CONTRACTS. 

ISkc.  115.  5.  I  pass  now  to  the  consideration  of  those  acts  which 
Jo  amount  to  a  part  ijerformance.  Possession  alone  of  land,  under  a 
verbal  contract,  when  delivered  to  the  vendee  or  lessee,  or  taken  by 
him  with  the  consent  of  the  vendor  or  lessor,  or  with  the  knowledge 
which  implies  such  consent,  is  an  act  of  part  performance  which  takes 
the  case  out  of  the  statute  of  frauds,  even  without  the  additional  cir- 
cumstances of  the  payment  of  consideration,  or  the  making  of  improve- 
ments. This  rule  is  settled  by  an  overwhelming  weight  of  authority 
in  England  and  in  this  country,  but  has  been  disapproved  by  the 
courts  of  one  or  two  states,  which  have,  until  recently,  only  possessed  a 
very  limited  equity  jurisdiction.  The  grounds  upon  which  the  doc- 
trine has  been  based  are  two  :  First.  That  the  possession  would  expose 
the  vendee  to  liability  as  a  trespasser,  and  for  the  rents  and  profits, 
unless  he  was  permitted  to  show  the  authority  under  which  he  entered; 
and  evidence  having  been  admitted  to  prove  the  verbal  contract  for 
this  purpose,  there  is  nothing  in  the  statute  which  prevents  a  court 
from  giving  its  full  force  and  effect  in  establishing  the  contract  by 
such  evidence  ;  and  secondly,  in  the  language  of  an  eminent  equity 
judge,  "the  acknowledged  possession  of  a  stranger  on  the  land  of 
another  is  not  explicable,  except  on  the  supposition  of  an  agreement, 
and  has,  therefore,  constantly  been  received  as  evidence  of  an  ante- 
cedent contract,  and  as  sufficient  to  authorize  an  inquiry  into  its 
terms,  the  court  regarding  what  has  been  done  as  a  consequence  of 
contract.  "(1) 

(1)  Pain  V  Coombs,  1  De  G.  &  J.  C4  ;  Coles  v.  Pilkington,  L.  R.  19  Eq.  174; 
Clinan  v.  Cooke,  1  Hch.  &  Lef.  Ii2,  41,  per  Lord  Redk.sdalb  ;  Morphett  %i.  Jones, 
1  S\v.  ISl,  per  Sir  T.  Plumkr  ;  Earl  of  Aylesford's  Cas-e,  2  Stra.  78 J;  Lacon  v. 
Mertins,  '6i  Atk.  1 ;  Wiila  v.  Stradling-,  8  Ve.s.  381  ;  Bowers  v.  Cator,  4  Yes.  91 ; 
Gregory  v.  Migliell,  18  Yes.  328  ;  Kine  v.  Balfe,  2  Ball  cV  B.  343  ;  Pain  v.  Coombs, 
3  Sm.  &  Giff.  449;  1  De  G.  &  J.  34;  Shillibeer  v.  .larvis.  8  De  G.  M.  &  G.  79; 
Butcher  v.  Stapely,  1  Yern.  3(3 J ;  Pyke  v.  Williams,  2  Yerii.  43.");  Seagood  v. 
Meale,  Pi-ec.  Ch.  5(J0 ;  Boardman  v.  Mostyn,  G  Yes.  4t)7  ;  Tilton  v.  Tilton,  9  N.  H. 
38*3,  390;  Eaton  v.  Whitaker,  IS  Conn.  i;22,  229;  Mui-ray  v.  Jayne,  8  Barb.  612; 
Malins  ?'.  Brown,  4  N.  Y.  403  ;  Pugh  v.  Good,  3  Watts  &  S.  5G,  til ;  Allen's  ]<:rftate, 
1  Watts  &  S.  3SJ,  386  ;  Jones  v.  Peterman,  3  Serg.  &  R.  043,  549  ;  Reed  v  Reed, 
12  Pa.  St.  117;  Johnston  v  Johnston,  6  Watts,  570;  Rhodes  v  Frick,  6  Watts, 
315  ;  Stewart  v.  Stewart,  3  Watts,  253 ;  Miller  v  Ilower,  2  Rawle,  53 ;  Bassler  v. 
Niesly,  2  Serg.  &  R.  352  ;  Jolinston  v.  Glancy,  4  Blackt.  94,  98  ;  Anderson  v. 
Simpson,  21  Iowa,  399  ;  White  v.  Watkins,  L'3  Mo.  42J  ;  Catlett  v  Bacon,  3-5  Miss. 
269  ;  Danforth  v.  Laney,  28  Ala.  274  ;  Reynolds  v  Johnston,  13  Tex.  214  ;  [Warton 
V.  Sioutenburgh,  35  N.  J.  Eq.  '.66;  Forrester  v.  -Fhn-es,  64  Cal.  24;  Griffidi  v. 
Abbott,  56  Yt.  356 ;  Cooper  v.  Monroe,  77  Hun,  1  ;  Coe  v.  Joluison,  93  Ind.  418  ; 
Pledgers.  Garri.son,  42  Ark.  246;  Haines  ?;.  Spanogle.  17  Nebr.  637;  Southmayd 
t).  Southmayd,  4  Mont.  100  (mining  partnership)  ;  PuterV>augh  v.  Puterbaugh 
(Ind.),  30  N.  E.  Rep.  519].  But  see,  questioning  this  rule,  Galbreath  v.  Gal- 
breath,  5  Watts,  146  :  Wood  v.  Farmare,  10  Watts.  195  ;  Dougan  v.  Blocher,  13 
Harris,  28  :  Shephei-d  v.  Shepherd,  1  Md.  Ch.  244  :  Owings  v.  Baldwin,  8  Gill,  337  ; 
Morris  ?)  Harris.  9  Gill,  19  ;  Glass  v  Hulbert,  10J  Mass.  25,  32  ;  Tatum  v  Brooker, 
51  Mo.    148;  [Bradley  v.  Owsley,  (Tex  )  ;  19  S.  W.  340  (April  19,  1892)]. 

168 


PAliT   I'KliFORMANCK.  lOr) 

Sec,  118.  It  is  neoes.saiy  to  asotn-taiii  more  accurately  the  theory 
ttpon  which  equity  procee..  waling  with  possession  as  a  part  per- 

formauce.  The  mere  physical  fact  of  possession  is  not  of  itself  conclu- 
sive, nor  even  material.  The  possession  must  be  taken  and  held  with 
the  intent  of  carrying--  out  and  executing  the  agi-eement.  The 
existence  of  this  intent  is  vital,  and  is  the  essential  element  which  the 
courts  require  as  a  condition  of  the  part'  performance  upon  which  a 
decree  of  specific  execution  may  be  based.  This  intent,  however, 
cannot  be  shown  by  proving  the  verbal  contract  between  the  parties, 
for  such  a  course  would  be  a  most  vicious  arguing  in  a  circle. (1)  It 
must,  therefore,  be  established  by  matter  outside  of  the  agreement. 
When,  however,  a  person  who  was  a  stranger  to  the  estate  takes  and 
holds  possession  of  land  belonging  to  another,  the  mere  fact  that  such 
possession  is  with  the  knowledge  of  such  owner,  and  without  any 
objection  from  liiui,  raises  a  prima  facie  presumption  of  the  requisite 
intent,  and  of  a  contract  in  pursuance  of  which  the  act  was  done.(2) 
"When,  on  the  other  hand,  the  possession  is  not  a  neio  fact,  but  is  the 
continuation  of  a  former  similar  condition,  as  when  it  is  l)y  a  tenant 
after  the  expiration  of  his  term  alleging  a  verbal  contract  to  renew  or 
to  convey,  the  intent  must  be  proved  by  some  further  act  which  clearly 
shows  that  possession  must  be  accounted  for  by  the  new  relation,  and 
cannot  be  referred  to  the  previous  holding.  Under  such  circumstances, 
the  fact  of  possession  raises  no  presumption  as  to  the  requisite 
intent.(3)  It  necessarily  follows,  from  the  theory  as  thus  stated,  that 
if  the  possession  is  not  in  pursuance  of  the  agreement,  but  results  from 
some  distinct  cause  ;  or  if  it  can  be  naturally  and  reasonably  accounted 
for  otherwise  than  by  a  contract  between  the  parties,  it  will  not  avail 
as  a  part  performance. (4)  For  example,  the  possession  by  a  son  of 
land  belonging  to  his  father,  even  when  accompanied  by  valuable 
improvements,  will  not  be  treated  as  a  part  performance,  because  the 
relation  between  the  parties  prevents  the   inference    which    would 

(1)  See  ante,  §  107.     Wills  i\  Stradlino-,  3  Ves.  378. 

(2)  See  vtim^a  ante.  §  11."),  L()r(i  v.  Underdnnk.  1  Sandf.  Ch.  46,  48;  Jervis  V. 
Smith,  Hoff.  Ch.  470,  475;  Thoinp-soii  n.  Scott,  1  M(;Cord  E-].  32,  39. 

(3)  Moi-phett  ?j.  Jones,  1  Sw.  172;  Wills  v.  Sti-adlinjr.  3  Ves.  .378  ;  Grefroi-y  ?». 
Mig-hell,  18  V<!.s.  328  ;  Jones  v.  Peternian,  3  Serg.  &  R.  543 ;  Poag  v.  Sandifer,  5 
Rich.  Eq.  170;  Johnston  v.  Glancy,  4  Blackf.  94,  99. 

(4)  Smith  V.  Smith.  1  Rich.  K(i.  ViO.  133,  136;  Gpi-inan  p.  Machin.  0  Paige.  289, 
293  ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72  ;  West  v.  Flannagan,  4  Md.  36  ;  Ja.;ol)s  v.  The 

Railroad,  S  ("u;-h.  2:2.;;  [Ducii'  r.  Ford,  US  U.  S.  .')87]. 

169 


166  ■  SPECIFIC  PERFORMANCE   OF   CONTRACTS. 

otherwise  arise  from  the  fact,  and  removes  all  necessity  of  accounting 
for  the  possession  by  the  supposition  of  an  existing  contract.(l) 

Hec.  117.  It  has  been  said,  in  some  judicial  decisions,  that  pos- 
session is  an  indispensible  element  in  the  part  performance  of  a  verbal 
contract  for  the  sale  of  land — in  other  words,  that  the  part  perform- 
ance of  such  p.  contract  is  impossible  without  a  change  of  possession; (2) 
but  this  conclusion  is  clearly  incorrect.  Many  other  acts,  without  a 
possession  fully  satisfy  all  the  requisites  of  a  part  performance. (3)  It 
is  not  essential  that  the  contract  should  expressly  stipulate  for  the 
delivery  of  possession.  If  the  possession  is  taken  in  pursuance  and  exe- 
cution of  the  agreement  and  with  the  knowledge  of  the  vendor,  it  is 
a  good  part  performance,  although  the  contract  be  silent  in  respect  to 
it.(4)  As  possession  alone  is  sufficient,  a  fortiori  possession  delivered 
by  the  vendor,  or  taken  with  his  knowledge  and  consent,  when  accom- 
panied by  other  acts  on  the  part  of  the  plaintiff,  constitutes  a  part 
performance  of  the  most  effectual  and  conclusive  character ;  as  pos- 
session and  payment  of  the  purchase-price  in  whole  or  in  part  ;(5)  or 
possession  and  the  making  of  valuable  improvements  on  the  land. (6) 

(1)  Eckert  v.  Eckert,  3  Penn.  332 ;  Haines  v.  Haines,  6  Md.  435  ;  Poorman  v. 
Kilg-oi'e,  2  Casey,  3G5  ;  Cox  v.  Cox,  2  Casey,  375  ;  McCue  v.  Johnson,  1  Casey, 
30(5 ;  Ham  v.  Goodrich,  33  N.  H.  32.  The  same  is  triie  of  possession  held  by  one 
person  under  anotliei"  standinif  to  him  hi  loco  parentis. 

(2)  Ackerman  v.  Fisher,  57l'a.  St.  457  ;  Peifer  v.  Landis,  1  Watts,  392  ;  McFaj-- 
land  V.  Hall,  3  Watts,  37  ;  McKee  v.  Phillips,  9  Watts,  85.  It  will  be  noticed  th.it 
these  aulhorities  are  all  from  the  decisions  of  Pennsylvania  courts,  which  have 
very  much  narrowed  the  equitable  doctrine  of  part  performance. 

(3)  See  Mundy  v.  Joliiffe,  5  Myl.  &  Cr.  167  ;  Hollis  v.  Edwards,  1  Vern.  159  ; 
Rhodes  v.  Rhodes,  3  Sandf.  Ch.  270. 

(4)  Harris  v.  Knickei'backer,  5  Wend.  045 ;  Smith  v.  Underdunk,  1  Sandf.  Ch. 
579  ;  Chambliss  7).  Smith,  30  Ala.  36G  ;  Gregory  v.  Mig-hell,  18  Ves.  328. 

(5)  Sutton  V.  Sutton,  13  Yt.  79  ;  Wilkinson  v.  Scott,  17  Mass.  251  ;  Davis  v. 
Townsend,  10  Barb.  347  ;  Lessee  of  Billington  v.  Welsh,  5  Binney,  129  ;  Gilday 
V.  Watson,  2  Serg.  &  R.  437 ;  Greenswalt  v.  Horner,  6  Serg.  &  R.  71  ;  Woods  v. 
Karmare,  10  Watts,  195  ;  Follmer'W.  Dale,  9  Barr,  83  ;  Wible  v.  Wible,  1  Grant  (Pa.), 
40(5 ;  Dugan  v  Gittings,  3  Gill.  140,  157  ;  Haines  V.  Haine.s,  (5  Md.  435  ;  Di'ury  v. 
Conner,  (5  Harr.  &  J.  288;  Moale  v.  Buchanan,  11  Gill.  &  J.  314;  WiUiams  ^•. 
Pope,  Wright  (Oh  ),  406 ;  Kelly  v.  Stanbery,  13  Ohio,  408  ;  Tibbs  v.  Barker,  1 
Blackf  58;  Hawkins  v  King,  2  A.  K  Marsh.  108  ;  Thornton  ii.  Yaughan,  2  Scam. 
218 ;  Shirley  v.  Spencer,  4  Gilman,  583,  600  ;  Fitzsimmons  v.  Allen,  39  111.  440  ; 
Jones  v.  Pease,  21  Wise.  644  ;  Brewer  v.  Brewer,  19  Ala.  481  ;  Finucane  v.  Kear- 
ney, 1  Freeman  Ch.  65,  68  ;  [Holmes  v.  Caden,  57  Vt.  Jll ;  Dimckel  v.  Dunckel, 
141  N.  Y.  427;  Rosenberger  i).  Jones,  118  Mo  559;  Green  v  Jones,  76  We.  563; 
(h-aft  V.  Loucks,  138  Pa.  St.  453  ;  Pleasanton  v.  R;xughley,  3  Del.  Ch.  124  ;  Watts 
7-  Witt  (S  C  ).  17  S.  E.  822  ;  Reynolds  v.  Rej-nolds,  45  Mo.  App.  622  ;  Lipp  7). 
Hunt,  25  Nebr.  91  ;  Wendell  v.  S'tone,  39  Hun,  382  (lea.se)  ;  Sharman  u  Sharmau, 
4  Reports,  124  ;  67  Law  Times,  834  (lease)  ;  Byers  v.  Denver  Circle  R.  Co.,  13 
Colo.  552  ;  Denlar  7)  Hile  (Ind  ),  24  N  E.  170  ;  Jamison  v.  Dimock,  95  Pa.  St.  52  ; 
Smith  V.  Yocum,  110  111.  142  (services  rendered  by  way  of  payment)  ;  Carney  v. 
Carney,  95  Mo.  353  (services  rendered)  ;  Lamb  7).*Hinman,  46  Mich.  112  (services 
rendered)]. 

(6)  Newton  v.  Swazey,  8  N  H.  9,  14  ;  Wetmore  v.  Whites,  2  Caines'  Cas.  87, 
109  ;  Parkhurst  v.  v^an  Cortland,  14  Johns.  15  ;  Simmons  7).  Hill.  4  Harris  & 
McHen.  252;  Moreland  v.  Lemasters,  4  Blackf.  383,385;  Miius  7).  Lockett,  33 
Geo.   9  ;  Byrd  v.  Odem,   9  Ala.   756,   764 ;  Johnson  v.   McGruder,   15  Mo.  365  ; 

170 


PART  l'KRFO/i-MA.\(  h\  167 

In  Massacliusettsi  and  in  Peuu.sylviiuia,  as  it  scciu.s  l)y  the  later 
autliorities,  the  rule,  as  to  the  effect  t>t'  possession,  is  much  more 
restricted  than  that  whicli  prevails  in  England  and  generally  in  this 
country.  Mere  possession  is  not  suliicient,  and  the  n<»tioii  that  the 
possessor  would  be  liable  as  a  trespasser  is  rejected;  the  possession 
must  be  taken  under  such  circumstances  that  a  money  compensation 
would  be  absolutely  impossible,  and  that  a  refusal  to  execute  the  con- 
tract would  be  clearly  unjust;  and  some  of  these  decisions  even  deny 
that  any  possession  can  l)e  a  part  performance,  unless  accompanied  by 
paym  :ut  of  the  consideration  or  the  making  of  improvements.(l)  Pos- 
session alone,  without  other  acts  of  improvement  and  tlie  like,  is  never 
a  sufficient  part  performance  of  a  parol  gift  of  lands. (2) 

ISec.  118.  As  the  questions  concerning  specific  performance  may 
generally  arise  in  two  classes  of  suits,  tliose  i)rosecuted  by  vendees 
and  those  prosecuted  by  vendors,  so  the  subject  of  possession  as  a  part 
performance  may  be  presented  under  these  two  aspects ;  first,  when 

Despain  v.  Carter,  21  Mo.  331  ;  Dii<iran  v.  Colvillo,  8  Tex.  126 ;  Otteuhoiuse  v. 
Burleson,  11  Tex.  87  ;  [Calanchini  v.  Branstettor,  84  Cal  249  ;  Mniiltoii  v.  Han-is, 
94  Cal  420  ;  Hunkms  v.  Huukhis  (N.  H.)  18  Atl.  Rep.  t!.').")  ;  V;in  Ki)p.s  •».  Ckick, 
7  N.  Y.  S.  21 ;  Burns  v.  Fox,  113  lud.  20.")  ;  Starkey  v.  Stai-k.-y  (liul.),  3t;  N.  E, 
Reo.  287  ;  Hall  v.  Peoria  &  E.  R.  Co.  (111.)  32  N.  E.  Rep.  5'J8;  Hayes  v.  Kaui^as 
City,  Ft  S.  &  a.  R.  Co.  (Mo  )  18  S.  W.  Rep.  1U'>;  Anderson  v.  Hoi-n,  75  Tex. 
675 ;  Hartman  v.  Streitz,  17  Nebr.  557  ;  Hunt  tJ.  lloyi,  10  Colo.  278 ;  Van  Trotha 
•7).  Baraberg-er,  15  Colo.  1 .  Sdiney  v.  Schaefter,  130  Pa.  St.  18;  Ilibbert  v.  Aylott, 
53  Tex  530.]  The  foUowini,'-  are  additional  cases  where  possession  with  improve- 
ments, and  with  or  without  any  payment,  lias  been  held  to  constitute  a  part  inn- 
forraance  :  Potter  v.  Jacobs,  lU  Mass  32;  Northrop  v.  Boone.  00  111.  308  ;  Fall  v. 
Hazelrig-g-,  45  Ind.  576;  Lowry  v.  Buffington,  W.  Va.  24!» ;  IIo\v(r  ■?).  Rof,r('i-s,  32 
Tex  218;  Freeman  ■?).  Freeman,  43  N.  Y.  34;  Peckham  v.  Barker,  8  R  I.  17; 
Welsh  V  Bayaud,  21  N.  J.  Kq.  180  ;  Richmond  v.  Foote,  3  Lans.  244;  Hendrick 
V  Hern,  4  W.  Va.  020;  Neale  v.  Neale.  9  Wall.  1 ;  Minis  v  Lockett,  33  Geo.  9  ; 
Clayton  v  Frazier,  33  Tex.  91  ;  Tatuui  v.  Brooker.  51  Mo.  148  ;  McCarjrer  v.  Rood, 
47  Cal.  138  ;  Greg-g-  v  Hamilton.  12  Kans  333  ;  Johnson  v.  Bowden,  37  Tex.  621  ; 
Wiinberley  v.  Bryan,  55  Geo.  198  (jiossession  and  part  payment) ;  Green  v.  Finin. 
35  Conn.  178;  Ing-les  v.  Patterson,  36  Wise.  373;  Hotliiian  v  Fett.  39  Cal.  109; 
Polau;l  V.  O'Conner.  1  N(-b  50  ;  Cai,^irer  v.  Lansing-.  43  N.  Y.  550  ;  Mo.ss  v.  Culver, 
64  Pa  St.  414;  Sackett  v.  Speneer,^t55  Pa  St.  89;  Adams  r.  l-^iUani.  43  Vt.  502; 
Wiswell  V  Teffc,  5  Kans.  263;  [Dayi).  Cohn,  65  Cal.  50S  ;  Smith  v.  Smith,  125  N.Y. 
224  (a^n-eement  to  g-ive  a  lien) ;  Wo'odlnu-y  v.  Gardner.  77  Me.  68  ;  Martin  v.  Patter- 
son (S  C  ),  2  S.  E.  Rep.  859;  Putnam  v.  Tinkler,  83  Mich.  62S :  McWhinne  v. 
Martin,  77  Wise.  182  ;  Evans  v.  Miller,  38  Minn.  245  ;  Bowman  v  Wolford,  80  Va. 
21 }  (possession,  imi)rovements,  and  rendering-  of  services) ;  Cutsingcr  v.  Ballard, 
115  Ind.  93  (same)  ;  Anderson  v.  Brinsei-,  129  Pa.  St.  376,  401  ;  Laird  v.  Allen,  82 
111  4 } ;  Jefferson  v.  Jefferson,  96  111.  551  ;  McDowell  v.  Lucas,  99  111.  489  ;  Barrett 
V.  Fornev,  Si  Va.  269  ] 

(I)  Glass  V  Hulbert,  102  Mass.  25,  32;  Moore  v.-  ShiaU,  7  Hai-ris,  461,  476; 
Dou'4-an  v.  Blocher,  12  Harris,  28,  34;  (ialbreath  v.  Galbreath,  5  Watts,  146; 
Woo  U  V.  Farmare,  10  Watts,  195  ;  Brawdy  v.  Brawdy,  7  Barr.  157.  In  Uougan 
V.  Blo-her,  supra,  VfooDWXRU,  ^.,  said:  " Pos.'^ession,  to  be  part  i)Crforinance, 
must  1)3  taken  umler  and  in  jiursuance  of  the  contract,  and  it  must  be  maintained 
as  it  was  taken  ;  and  unless  accompanied  liy  such  improvements  as  will  not 
reasonably  admit  of  compensation  in  damages,  is  not,  even  when  S()  taken  and 
maiiitainiMl.  su(-h  i)art  i)erformaii(-e  of  a  i)arol  contract  as  will  take  it  out  of  the 
statute-  of  frauds."  [Si^e,  also.  Bui-ns  v.  Daggett,  141  Mass.  368,  373.)  In  (ila.'<sr. 
Hulbert,  supra,  the  theory  that  a  venilee  is  liable  as  a  trcsjia-sser,  unless  the 
verbal  contract  is  admitteil  in  defense  to  exjilain  his  i)os.session.  is  emiihatic^ally 
repudiated  on  the  g-round  that  a  parol  license  is  a  defeu.se  for  acts  done  under  it 
while  unrevoked. 

(-2)  Stewart  v.  Stewart,  3  Watts,  253,  255  ;  Eckert  v.  E(;kert.  3  Peun.  332 ; 
Pinckard  v.  Pinckard,  23  Ala.  649.  The  subject  of  i)ai-ol  grifts  will  Im-  discussed 
at  lai-ge  in  subse<pi(mt  i)aragi-aphs — post,  §^  130,  131. 

171 


168  SPECIFIC    PEHFORMAXCR    OF   CONTRACTS. 

the  vendee  or  lessee  sues  to  enforce  the  verbal  contract  and  relies  upon 
a  possesion  taken  by  himself  with  the  consent  of  the  vendor  ;  secondly, 
when  the  vendor  sues  and  relies  upon  a  possession  delivered  by  himself 
and  accepted  by  the  vendee.  Although  the  former  case  is  by  far  the 
luost  frequent,  in  practice,  the  rule  as  to  part  performance  applies  with 
the  same  force  and  eifect  to  the  latter. (1)  Having  stated  the  theory 
upon  which  possession  is  regarded  as  a  part  performance,  and  described 
the  generic  cases  to  which  it  does  or  does  not  extend,  I  shall  now 
examine  the  })articular  features  and  qualities  of  this  possession,  in 
order  that  it  may  avail  to  take  a  verbal  contract  out  of  the  statute  of 
frauds. 

•Sec  119.  1.  The  possession  of  a  vendee  or  lessee  under  a  verbal 
contract,  must  be  Tvith  the  consent  of  the  vendor  or  lessor,  for 
otherwise  the  very  feature  of  the  transaction,  which  would  render  a 
refusal  to  execute  the  agreement  a  virtual  fraud  as  against  the  pur- 
chaser, would  be  wanting. (2)  Where  the  possession,  however,  is  taken 
with  the  vendor's  knowledge  and  without  any  objection  on  his  part, 
this  fact  raises  a  presumption  of  his  consent,  and  no  further  evidence  of 
it  is  necessary. (o)  If  the  original  entry  was  without  consent,  but  the 
vendor,  on  its  coming  to  his  knowledge,  allow^s  the  possession  to  con- 
tinue, the  subsequent  assent  will  affect  the  act  from  the  beginning 

(1)  Pyker.  Williams,  2  Vera.  455;  Earl  of  Aylesfcml's  Case,  2  Stra  783;  Harris 
V  Knickerbackci-,  5  Wend.  6^8  ;  Pugli  v  (luod,  '6  Watts  &  S.  5G ;  Reed  v.  Reed, 
iii  Pa  St.  117;  Moore  ii  Small,  19  Peun.  St  401;  White  v.  Crew,  16  Geo.  4JG; 
[Wharton  v.  Stoutenburyh,  b5  N.  J,  E(i.  26(3 ;  Ducie  v.  Ford,  138  U.  S.  587,  594  ; 
Greenlecs  v  Roche,  (Kan);  29  Pac.  R.  590  (Apr  9,  1892);  Andrews.  Bab- 
cock  (Conn.),  26  Atl.  Rep.  715  (May  4,  1893)  ;  Steenrod  v.  R.  R.  Co.,  27  W.  Va. 
1 1  ;  McKenna  v.  Bolger,  49  Hun,  259 ;  Devin  ?i  Eagleson  (Iowa),  44  N.  W.  Rep. 
5j5  ;  Seaman  v.  Aschermann,  51  Wis.  678  (at  suit  of  lessor)  ] 

(2)  See  cases  ante,  §§  10 1,  106.  Also,  Howe  v.  Rogers,  32  Tex.  218  ;  Freeman 
r   Freeman,  43  N.Y.  a4  ;  Moore  v.  Higbee,  45  Ind.  487  ;  [Cloud  v.  Greasley  (111.), 

17  JNT  E.  826;  Baniett  v.  Washington  Glass  Co.  (Ind.  App  ),  40  N.  E.  Rep.  1102 
(June  5,  1895)  ]  A  possession  taken  under  another  i-ight  than  that  given  by  the 
fonti-act  is  not  sufficient.  Jacobs  v.  Peterborough,  etc.,  R.  R.,  8  Cush.  224; 
Purcell  V   Miner,  4  Wall.  513. 

( >.)  See  ante,  §  116.     Cole  v.  White,  cited  1  Bro.  C.  C.  409  ;  Gregory  v.  Mighell, 

18  Ves.  y2S;  Lord  ^j  Underdunk,  1  Sandf.  Ch.  46,  48;  Jei-vis  v.  Smith,  Hoh'man 
Ch.  470,  47.');  Ptu-ccII  v  Miner,  4  Wall.  513;  Goucher  v.  Martin.  9  Watts,  106; 
(fi-atz  V.  Gratz,  4  Rawle,  411;  Sage  v.  McCxuii-e,  4  Watt.-<  &  S.  228  ;  Thompson  v. 
Scott,  I  Mi;Coi-d  Eip  b2,  39  ;  Givens  v  Calder,  2  Dessau  Ecp  174  ;  Johnston  y. 
Glancy,  4  J31ackf.  94  ;  Ash  v  Dao-gy,  6  Porter  (Ind  ),  259  ;  CarroUs  v  Cox,  15 
Iowa,  455;  Millard  7>.  Harvey,  34  Beav.  237;  13  W.  R.  125.  Plaintiffs  wife, 
without  her  husband's  knowledge,  jxiid  to  defendant  £,  1 50  with  the  design  of  pur- 
chasing a  field  for  the  plaintiff.  A  shoi't  time  after  defendant  told  plaintiff'  he 
might  ha\e  the  lield  to  put  his  horse  in.  Plaintiff  occu])ied  the  field  ten  yeai"S 
without  paying  any  rent,  and  in  ignorance  of  what  his  wife  had  done.  Defend- 
ant refuseil  to  convey,  l:)ut  kejat  the  money  and  paid  no  interest  on  it.  Sir  John 
ROiMiLLY,  M  R  ,  held  that  there  was  a  contract  with  the  wife  as  agent  for  the 
j)laintiff,  which  was  afterwards  adopted  by  him  ;  that  as  it  was  accompanied  by 
possession  with  defendant's  consent  for  ten  years,  this  was  a  part  performance, 
.and  it  should  bo  siiecifically  enforced. 

17J 


PART   PRRFORMANCB.  169 

and  make  it  a  good  part  jicrforniiuico.(l)  And  whon  tho  possession 
has  continned  for  a  long  time  with  the  vendor's  knowledge,  he  wonld 
probably  be  estopped  from  denying  that  it  began  with  his  consent.  (2) 
The  consent  of  the  vendor  may  be  inferred  fnmi  his  acts.  If,  for 
example,  the  land  at  the  time  of  the  sale  is  in  the  occnpancy  of  a 
tenant  of  the  vendor,  and  it  is  agreed  befween  the  parties  that  this 
tenant  shall  in  future  pay  his  rent  to  the  vendee,  atid  the  tenant 
thereupon  attorns  to  the  vendee,  the  consent  to  a  changing  jtossession 
is  thereby  sufficiently  shown. (8)  Possession  taken  by  a  lessee  of  the 
vendee  enures  to  the  vendee's  benefit,  and  if  otherwise  sufficient,  is  a 
good  part  ])erformance.(4) 

Sec.  r?0.  2.  The  jwssession  must  be  actual  and  not  merely  nomi- 
nal, open,  visible  and  notorious,  so  that  the  fact  can  be  certainly^ 
proved  by  the  testimony  of  eye-witnesses,  and  not  left  to  be  inferred 
by  the  court  from  doubtful  and,  [)erhaps,  interested  evidence.  As. 
the  absence  of  a  writing,  as  required  by  the  statute,  is,  in  some 
measure,  supplied  by  the  physical  fact  of  possession,  it  is  plain  that, 
the  proof  of  that  fact  should  be  in  a  high  degree  satisfactory  and 
certain. (5)  When,  therefore,  the  premises  were,  at  the  time  of  the 
verbal  sale,  occupied  by  a  tenant  of  the  vendor,  who  was  left  in  the 
occupancy,  but  recognizing  the  vendee  as  his  landlord,  this  occupa- 
tion and  attornment  by  the  tenant  was  held  not  to  be  the  open,  and 
visible  change  of  possession  required  by  the  rule  in  order  to  constitute- 
a  part  performance  ;  if  such  attornment  could  be  effectual,  it  must 
itself  be  public,  formal,  so  as  clearly  to  indicate  the  possession  to  be 
that  of  the  vendee. (6) 

(1)  Gi-egory  v.  Mighell,  18  Ves.  328  ;  Pain  v.  Coombs,  1  DeG.  &  J.  34,  46. 

(2)  Harris  v.  Knickerbacker,  5  Wend.  645 ;  Thompson  v.  Scott,  1  McCord  Eq. 
32.  And  acquiescence  in  the  possession  for  a  long  time  will  be  a  strong  circum- 
stance to  prevent  the  vendor  from  defeating  the  execution  by  setting  up  the 
statute.  Biatchford  v.  Kirkpafrick,  G  Beav.  232.  It  has  been  held,  however,, 
that  permitting  the  property  to  be  occupied  for  a  few  months,  when  the  profits 
of  it  were  very  small  and  no  improvements  were  made,  was  not  a  sufficient  j>art 
performance  ujjon  which  to  enforce  the  agi-eement.  Jei-vis  i\  Smith,  1  Iloff. 
Ch.  470. 

(3)  Williiims  v.  Landman,  8  Watts  &  Scrg.  56,  60  ;  Pugh  v.  Good,  3  Watts  & 
S.  56.  But  whether  these  facts  woidd,  of  theinselve,s,  constitute  a  sufficient  phys- 
ical possession  by  the  vendee  to  satisfy  the  i-tde  is  a  very  different  question.  See 
Ea'vdry  v.  Bawdry,  7  Barr.  1.57. 

(4)  Pugh  7).  Good,  3  Watts  &  S.  56  ;  and  sf(!  Williams  y.  Evans,  L.  R.  10  E(i.  .')47. 
[Possession  of  husbaiul  may  inure  to  benetit  of  wifc^ ;  Murphy  v.  .St<>vei',  47  Jlich. 
522  ] 

(.'))  White  r  Watkins,  23  Mo  423;  Haslet  v.  ILislet,  6  Watts,  464;  Frye  v. 
She^h  r,  7  Barr  01  ;  Moore  ?'  Hmall,  10  Pa.  St.  461  ;  Johnson  v  Glancy,  4  Blai;kf. 
9t  ;  [7uUo;i  v.  .lan^-cn,  03  Cal.  537  (cutting  wood  on  the  land  for  family  use  is  not 
a  sufficient  taking  of  iiossession) ;  Ward  n.  Stuart,  63  Tex  333  ;  Bamett  v  Wash- 
ington Glass  Co.  (Ind.  App.),  40  N.  E.  Rep.  1102  (.June  5.  1805)  ]. 

(6)  Bawdry  v.  Bawdry,  7  Barr.  l.")7. 

173 


170  SPEC  I  tic  PERFOliMANCE    OF   CONTRACTS. 

Sec.  121.  o  The  possession  must  be  definite  and  exclusive  ;  it 
must  uuequivocally  show  what  land  is  possessed,  and  th<^it  it  is  pos- 
sessed by  the  purchaser  exclusively  and  not  concurrently  with  the 
vendor ;  it  must,  in  short,  indicate  the  commencement  of  a  new  interest 
or  estate. (1)  This  requisite  was  held  wanting,  and  the  jwssession 
accordingly  in  wiliicient  in  the  following  cases:  Where  a  purchaser 

(1)  Blakeslcc!  v.  Blakeslee,  10  Harris,  237  ;  Haslet  v.  Haslet,  6  Watts,  4(54  ; 
Moore  v.  Small,  19  Pa.  St,  461 ;  Robertson  v.  Robertson,  9  Watts,  32,  41 ;  Fry(> 
V.  Shepler,  9  Barr  9 1  ;  Goucher  v.  Martin,  9  Watts,  106,  109  ;  Workman  u  Guthrie, 
5  Casey,  495,  512  ;  Galbreath  v.  Galbreath,  5  Watts,  140  ;  Zimmerman  v.  Wang-ert, 
31  Pa.  St.  401  ;  Davis  v.  Moore,  9  Rich.  215  ;  [Miller  v.  Lorentz  (W.  Va  ),  19  S.  E 
Rep.  391  ;  Trammell  v.  Craddock  (Ala.),  9  So.  Rep.  587  (possession  by  a  married 
woman  under  an  alleged  purchase  from  her  husband).  But  see,  Lamb  v.  Hinman, 
46  Mich.  112,  in  which  Cooley,  J  ,  maintained  that  the  possession  need  not  b;i 
exclusive:  " The  reason  why  taking-^ possession  under  an  oral  contract  is  recog- 
nized as  a  ground  for  specific  performance,  when  payment  of  the  purchase-pric<! 
is  not,  is  that  in  one  case  there  is  no  standard  for  the  estimate  of  damages,  when 
the  contract  is  repudiated,  and  in  the  other  there  is  a  standard  that  is  definite  and 
certain.  A  purchaser  who  takes  possession  of  land  under  an  oral  purchase  is 
likely  in  so  doing,  to  change  very  considerably,  perhaps  wholly,  the  general 
course  of  his  life  as  previously  planned  by  him  ;  and  if  he  is  evicted  on  a  rei)u- 
diation  of  the  contract,  any  estimate  of  his  loss  by  others,  must  in  miiny  cases  be 
mere  guess  work.  The  rule  therefore  rests  upon  the  element  of  uncertainty, 
and  not  upon  any  technical  ground  of  exclusiveness  in  the  possession.  And  upon 
this  point,  no  case  in  its  equities  could  be  plainer  than  this.  Complainant  aban- 
doned and  made  a  new  one  in  reliance  upon  the  oral  contract ;  occupied  the 
land  bargained  for  and  cultivated  it  for  six  years,  in  confidence  that  the  contract 
would  be  performed  ;  and  it  is  not  too  nnuch  to  say,  that  the  whole  course  of  his 
subsequent  life  was  probably  changed  in  consequence.  To  deny  relief  under 
such  circumstances  for  no  other  reason  than  that  he  did  not  occupy  exclusively, 
would  be  to  make  the  whole  case  turn  upon  a  point  in  itself  unimportant  as 
affecting  the  real  equities.  The  case  is  within  Kingston  v.  Young,  41  Mich.  339." 
In  this  case  a  father  promised  to  convey  to  his  son  a  part  of  his  farm,  if  the  son 
would  move  on  it  and  perform  certain  services.  The  son  performed  his  part  of 
the  agi-eement,  but  the  father  died  without  making  a  deed.  Decree  was  in  favor 
of  the  son.  And  in  Kingston  v.  Young,  44  Mich.  339,  supra,  which  was  a  some- 
what similar  case,  Judge  Cooley  further  said  :  "  The  acts  of  part  i^erformance 
have  consisted  in  taking  possession  of  the  land,  making  improvements  and  spend- 
ing money  upon  it.  But  these  acts  have  not  been  of  a  nature  as  conclusive  a ; 
would  be  desired.  Complainant  being  then  unmarried,  has  continued  to  reside, 
with  his  father,  and  both  having  very  limited  means,  the  improvements  not  been 
•extensive  or  especially  noticeable  to  others.  Moreover,  living  thus  together,  th:; 
parties  have  worked  together  considerably.  *  *  But  we  are  inclined  to  think 
that  the  se^iarate  jiosse-ssion  of  complainant  was  as  distinct  as  could  have  been 
expected  ;  the  son  living  with  his  father,  as  he  did,  the  two  supporting  themselves 
by  hard  labor,  and  making  improvements  only  as  their  meager  crops,  after  sup- 
porting themselves  from  them,  would  furnish  the  means  "  Warren  v.  Warren» 
112  El.  568  ;  Johns  v.  Johns,  67  Md.  480]. 
174 


170  SPECIFIC    PERFORMANCE   OF   CONTRACTS. 

moved  into  the  premises  and  remained  there  not  as  the  sole,  exchisive 
owner,  but  in  company  Nvitli  a  former  occupant  ;(2)  wliere  the  j)ur- 
chaser  occupied  the  premises  in  question  in  connnon  with  adjacent 
land  of  lii.s  own,  without  having  in  any  manner  ascertained,  marked 
out,  or  determined  their  extent  and  boundaries. (3)  The  rule  con- 
cerning' exchisive  possession  applies  with  special  force  to  tenants  in 
common.  Where  a  plaintiff  claims  as  purchaser  of  land  to  the  pos- 
session of  ^vhich  he  and  others  are  entitled  as  tenants  in  connnon,  or 
joint  tenants,  no  mere  possession  by  him  can  avail  as  a  part  perform- 
ance ;  no  possession  can  suffice  which  does  not  show  his  iiidividusil 
right  to  the  exclusion  of  the  other  co-tenants. (1)  The  reason  of  this 
is  obvious,  and  results  from  the  nature  of  such  co-ownership.  Each 
tenant  is  entitled  to  the  possession  of  the  common  estate  ;  the  posses- 
sion of  one  is  that  of  all  the  others.  An  entry  and  possession  of  the 
plaintiff  claiming  to  be  the  vendee  would  not,  therefore,  tend  to  show 
a  contract  of  sale  from  the  others,  or  aiiy  interest  in  him  to  the  exclu- 
sion of  the  others.  That  such  a  possession  should  operate  as  a  part 
performance,  there  must  have  been  some  prior  act  of  open  disseizin, 
or  some  joint  act  of  ])artition  among  all  the  co-owners.  This  rule, 
touching  a  verbal  sale  among  co-tenants,  does  not  at  all  interfere  with 
the  well-known  doctrine  of  a  parol  partition.  When  co-tenants  make 
a  parol  partition  of  the  land  among  themselves,  and  each  one  takes 
exclusive  possession  of  his  own  share' thus  allotted,  it  is  settled  that 
the  statute  of  frauds  does  not  apply,  and  a  court  of  equity  will  con- 

(2)  Frye  v.  Shepler,  7  Barr.  91  ;  [Gallag-her  v.  Gallagher,  31  W.  Ya.  9,  13.  Tin- 
possession  of  a  married  woman,  living-  with  her  husband  on  land  which,  by  oral 
ante-nuptial  contract  she  ag-i-eed  to  convey  to  him,  is  not  a  sufficient  part  perfor- 
mance of  the  contract.     Peek  v.  Peek,  77  Cal.  106.] 

(3)  Haslet  v.  Haslet,  6  Watts,  4G4. 

(4)  Workman  v.  Guth;-ie,  5  Casey,  495,  512 ;  Galbreath  v.  Galbreath,  5  Watts. 
148;  Blakeslee  v.  Blakeslee,  10  Harris,  257;  [Peekham  i).  Balch,  40  Mi.-h.  179; 
Haines  v.  McGlone,  44  Ark.  70,  83;  Munk  v.  Weidner  (Tex.  Civ.  App  ),  29  S.  W. 
409,  Jan.  23,  1895].  In  Workman  7).  Guthrie,  Woodw.vrd,  J.,  said  :  "What,  then, 
it  naay  be  asked,  can  there  be  no  sale  of  land  by  parol  among  tenants  in  common 
where  all  are  in  possession  ?  Certainly  not ;  because  the  statute  of  frauds  forbids 
it,  and  there  cannot  be  such  part  jiei-formances  as  would  take  it  out  of  the  ojiera- 
fion  of  that  wise  and  statutory  rule  of  titles."  This  doctrine  ajiplies  with  ei|ual 
force,  as  is  stated  in  the  text,  to  the  case  where  the  tenants  in  common  are  not  all 
in  actual  possession ;  because  where  one  is  in  po.ssession  all  are  in  po.sscss^ion. 
unless  there  has  been  a  disseizin.  [That  specific  iierforniance  of  a  jiarol  agree- 
ment for  the  sale  of  lands  between  tenants  in  common  may  be  enforced  in  a 
proper  case,  as  when  one  tenant  takes  exclusiv(;  jiossession  and  makes  improve- 
ments, see  Littlefield  v.  Littlefield,  51  Wis.  23,  30  ;  Peck  v.  Williams,  113  Ind.  256.] 

175 


171  I'ART  PKRFOUMA,\CE. 

firm  and  enforce  the  division  by  its  decree. (1)  The  same  rule  also 
applies  to  verbal  family  arrangements,  compromises,  and  exchanges, 
when  carried  into  effect  by  an  exclusive  possession  of  his  individual 
lands  by  each  party  ;(2)  and  to  verbal  compromises  or  settlements  of 
boundaries  and  titles  between  adjacent  proprietors,  if  followed  by 
exclusive  possession  and  enjoyment. (3) 

Sec.  122.  4.  The  possession  must  be  of  the  very  tract  of  land 
bargained  for  in  the  contract,  and  which  forms  the  subject-matter  of 
the  suit.  This  proposition  requires  no  authorities  directly  in  its  sup- 
port, and  is  either  tacitly  assumed  or  expressly  asserted  in  all  the 
decisions  which  discuss  the  doctrine  of  possession  as  applied  to  dis- 
tinct parcels  included  in  one  agreement. (4)  The  question  may  be 
presented  in  three  cases — first,  where  the  contract  embraces  only  one 
parcel  of  land;  second,  where  several  distinct  parcels  are  bargained 
for  by  one  entire  contract  for  one  gross  consideration;  and  third, 
where  several  distinct  parcels  are  bargained  for  by  separate  contracts 
and  for  separate  prices,  although  they  are  all  sold  at  the  eame  time 
and  in  the  same  general  transaction — as,  for  example,  at  one  auction 
sale.  It  is,  of  course,  assumed  in  each  of  the  two  latter  cases  that 
all  the  parcels  are  sold  by  the  same  vendor  and  bought  by  the  same 
vendee  ;  if  the  purchase  is  made  from  different  owners,  or  by  different 
vendees,  no  question  could  of  course  arise.  In  the  third  case,  where 
distinct  parcels  are  sold  to  one  purchaser  by  separate  agreements, 

(1)  Corbin  v.  Jackson,  14  Wend.  619  ;  Pratt  v.  Hubbell,  3  Ohio  St.  243  ;  Slice 
V.  Derrick,  2  Rich.  7  ;  Wildey  v.  Bonney,  31  Miss.  634  ;  City  of  Natchez  v. 
Vandervelde,  31  Miss.  706,  720 ;  Calhoun  v.  Hayes,  8  Watts  &  S.  127  ;  Rhodes  v. 
Frick,  6  Watts,  315  ;  Rhine  v.  Robertson,  27  P.  St.  30  ;  Loung  v.  Frost,  1  Md. 
377 ;  Goodhue  v.  Barnwell,  Rice  Eq.  198  ;  Weed  v.  Terry,  2  Doug.  344 ;  Cum- 
hiings  V,  Nut,  Wright  (Ohio),  713;  Sweeny  i).  Miller,  34  Me.  388.  [See,  also, 
Borden  v.  Curtis,  46  N.  J.  Eq  468;  Kennemore  v.  Kennemore  (S.  C),  1  S.  E. 
Rep.  881  ;  Savage  v.  Lee,  101  Ind.  514  ] 

(2)  Neale  v.  Neale,  1  Keen,  672 ;  Stockley  v  Stockley,  1  V.  &  B.  23.  [See, 
also,  Bumgardner  v.  Edwards,  85  Ind  117  ;  Savage  v.  Lee,  101  Ind.  514;  Hank 
V.  McComas,  98  Ind.  460  ;  Wright  v.  Jones,  105  Ind.  17  ] 

(3)  City  of  Natchez  v.  Vandervelde,  31  Miss.  706,  720 ;  Davis  v.  Townsend,  10 
Barb.  333;  Lindsay  v.  Springer,  4  Harring,  574;  Boyd  v.  Graves,  4  Wheat.  513; 
Blair  v  Smith,  1  Bennett  (Mo.),  273;  Fuller  v.  County  Comm'r.s,  15  Pick.  81; 
Kip  V.  Norton,  12  Wend.  127. 

(4)  Buckmaster  v.  Harrop,  7  Ves.  341  ;  Smith  v  Underdunk,  1  Sandf.  Ch.  579  ; 
Jones  V  Pease,  21  Wise.  644 ;  Allen's  Estate,  1  Watts  &  S.  384,  389  ;  Pugh  v. 
Good,  3  id.  56  ;  [Cochran  v.  Ward  (Ind.  App.),  31  N.  E.  581  ;  Myers  v.  CroswelU 
45  Ohio  St.  543]. 

176 


SPECItK-    I'KHFORMAyCK    OF    COxVTRACTS.  172 

although  at  tlio  suinc  time  iu  dug  general  transaction,  as  at  an  auc- 
tion, it  is  fully  settled  tliat  a  possession  of  one  parcel  will  not  cousli- 
tute  a  part  i)erformance  in  respect  to  the  other  parcels  ;(1)  and  a 
fortiori  thi^  would  be  so,  if  the  sales  of  the  various  parcels  took  i)lace 
at  different  times,  for  there  would  then  be  no  appearance  even  of  one 
single  and  entire  contract.  In  tlie  second  case,  where  the  several 
distinct  parcels  are  sold  to  the  same  vendee  by  one  entire  contract 
and  for  a  gross  price,  the  rule,  as  generally  adopted,  makes  the 
pro])er  possession  of  one  parcel  a  suHicient  part  pcrforinauce  as  to 
all. ("2)  This  doctrine,  however,  has  been  exi)ressly  rc^pudiated  in 
Pennsylvania. (o)  The  rule  applicable  to  the  lirst  of  these  three  cases 
is  necessarily  included  in  that  which  governs  the  second.  Although 
the  possession  of  the  one  tract  nnist  have  the  qualities  heretofore 
described,  it  need  not  equally  extend  as  an  actual  user  to  all  portions 
of  the  soil.  It  must  be  such  as  to  indicate  the  whole  tract  claimed, 
and  to  assert  a  proprietorship  over  it ;  but  it  need  oidy  be  reasonable, 
customary,  and  according  to  the  usages  of  the  neighborhood,  if  it  be 
agricultural  laud,  or  according  to  the  nature  and  condition  of  the 
premises  themselves. (4) 

Sec.  123.     5.  The  possession  must  be  in  pursuance  of  the  con- 

(1)  Backmaster  v.  Ilan-op,  7  V(is.  341  ;  [Small  v.  Northern  Pac.  R.  R.  Co.,  20 
Fed.  Rep.  753;  Myers  v.  Croswell,  45  Ohio  St.  543)  ;  and  see  cases  cited  in  the 
two  following  notes. 

(2)  Smith  V.  Underdunk,  1  Sandf.  579.  581  ;  Jones  v.  Pease,  21  "Wise.  G44  ;  this 
rule  is  implied  by  the  decision  of  Sir  W.  Grant  in  Buckmaster  v.  Harrop,  supra  ; 
and  see  Dock  v.  Hart,  7  W.  &  S.  172. 

(3)  Allen's  Estate,  1  Watts  &  S.  384,  38!)  ;  Pugh  v.  Good,  3  id.  5f),  (il  ;  McrClure 
V.  McClure,  1  Barr.  374,  379. 

(4)  Sutherland  v.  Brig-gs,  1  Hare,  20,  per  WiciKAM,  V.  C.  :  "  It  was  next  said 
that  the  justice  of  the  case  would  be  satisfied  by  giving  to  the  plaintiff  so  much 
of  the  meadow  as  the  house  stands  upon,  which  the  defendant  offered  to  do.  To 
the  suggestion  that  justice  would  be  satisfied  by  doing  this,  I  cannot  accede;  for 
some  additional  portion  of  the  meadow  would  be  essential  to  the  enjojTnent  of 
the  house.  The  rules  of  this  court,  however,  will  not  pei-mit  me  so  to  consider 
the  case.  If  the  acts  done  by  the  plaintiff  are  to  b(>  considercid  a(;ts  of  part  per- 
formance, taking  the  case  out  of  the  operation  of  the  statute,  the  rules  of  the 
court  entitle  him  to  prove  the  entire  agreement  which  the  acts  relied  upon  were 
intended  partly  to  perform.  The  act  of  building  part  of  the  house  upon  the 
meadow  was  an  act  affecting  the  whole  tenement,  viz.  :  the  meadow,  and  not  that 
part  of  it  only  upon  which  the  house  stands.  The  case  of  Mundy  v.  Jt)lliffe,  5  My. 
&  Cr.  167,  will  apply  also  to  this  part  of  the  present  case."  See,  also,  Howe  v. 
Hall,  4  I.  R.  E(i.  242  ;  but  see  Frame  ti.  Dawson,  14  Ves.  380.  The  recent  case 
of  Miller  v.  Ball,  04  N.  Y.  280,  is  an  admiral)le  illustration  of  the  text. 

177 


173  PART  PERFORMANCE. 

tract,  and  with  the  view  to  carry  it  into  execution.  The  meaning  of  this 
rule  is,  that  possession,  in  order  that  it  may  of  itself  constitute  a  part 
performance,  must  be  of  such  a  nature  and  under  such  circumstances 
that  it  shall  naturally  and  reasonably  be  accounted  for  by  the  suppo- 
sition of  a  contract  rather  than  of  any  other  relation  between  the 
parties,  and  shall  thus  clearly  indicate  the  commencement  of  a  new 
interest  or  estate  in  the  land  on  the  part  of  the  possessor.(l)  This  is 
nothing  more  than  the  application  of  a  general  principle  heretofore 
discussed  to  this  particular  instance  of  part  performance.  It  follows, 
therefore,  that  if  the  possession  is  not  connected  with  the  contract,  but 
is  referable  to  some  other  cause  ;(2)  or  if  it  can  be  naturally  and 
reasonably  accounted  for  upon  some  supposition  other  than  that  of  a 
contract,  it  will  not  be  a  part  performance. (3) 

Sec.  124.  This  rule  has  its  most  frequent  application  to  cases  in 
which  the  possession  is  not  a  new  fact,  but  is  the  iminterrupted  con- 
tinuation of  a  former  condition.  It  results  as  a  necessary  corollary 
from  the  rule  itself  that  such  a  possession — one,  that  is,  which  merely 
prolongs  a  pre-existing  situation  of  the' party  in  reference  to  the  land, 
cannot  alone  be  a  part  performance  of  an  intervening  contract,  since  it 

(1)  Cole  V.  White,  cited  1  Bro.  C.  C.  409  ;  Morphett'W.  Jones,  1  Sw.  181  ;  "Walker 
V.  Walker,  2  Atk.  100  ;  Wlaitbread  v.  Brocklmrst,  1  Bro.  C.  C.  417 ;  2  V.  &  B. 
154,  n.  ;  Hawkins  v.  Homes,  1  P.  Wins.  770  ;  Att'y  Gen.  v.  Day,  1  Ves.  221  ; 
Wills  V.  Stradling,  3  Ves  378  ;  Buckmaster  v.  Harrop,  7  Ves.  346  ;  Hollis  v. 
Edwards,  1  Vern.  159  ;  Meynell  v  Surtees,  3  Sm.  &  Giff  101 ;  Farrall  v.  Daven- 
port, 3  Giff.  363;  Robertson  v.  Robertson,  9  Watts,  32,  43;  Stoddart  v.  Tuck,  4 
Md.  Ch.  475  ;  5  Md.  184  ;  Anderson  v.  Chick,  1  Bailey  Eq.  118,  124;  Hood  v. 
Bowman,  Freema-n  Ch.  290,  293;  Ham  v.  Goodrich,  33  N.  H.  32,  See,  also.  Peck- 
ham  V.  Barker,  8  R.  I.  17  ;  Welsh  v.  Bayard,  21  N.  J.  Eq.  186  ;  Richmond  v. 
Foote,  3  Lans.  244  ;  Moore  v.  Higbee,  45  Ind.  487  ;  Wood  v.  Thomby,  58  111.  464  ; 
[Ducie  V.  Ford,  138  U.  S.  587  ;  Moore  v.  Gordon,  44  Ark.  334,  341 ;  Myers  v.  Cros- 
well,  45  Ohio  St.  543  ;  Arnold  v.  Stephenson,  79  Ind.  126  ;  Green  v  Groves,  109 
Ind.  519 ;  Rucker  v.  Steelman,  73  Ind.  396  ;  Judy  v.  Gilbert,  77  Ind.  9G  ;  Pike  v. 
Peters,  71  Ala.  98]. 

(2)  Smith  V.  Smith,  1  Rich.  Eq.  130;  [Kaufman  v.  Cook,  114  111.  11  ;  Lord's 
Appeal,  105  Pa.  St.  451;  Nay  v.  Mog-rain,  24  Kan.  75  (referable  to  a  deed); 
Recknagle  v.  Schmaltz,  72  Iowa,  63]. 

(3)  German  v.  Machin,  6  Paige,  289,  293  ;  Cox  v  Cox,  2  Casey,  375  ;  Poorman 
V  Kilgore,  2  Casey,  865  ;  Jacobs  v  Railroad  Co  ,  8  Cush.  223  ;  [Hunt  v.  Lipp, 
(Neb  ) ;  46  N.  W.  Rep.  632  (-ept  30,  1890)  ;  Drum  v.  Stevens,  94  Ind.  181,  183 
(temporary  surrender  of  possession).  ] 

178 


PART  PERFORMAyCE.  173 

■will  be  accounted  for  b}^  the  i)iior  coiiditiou  as  naturally  as  by  the  ik'w 
agreenient.(4)  If,  therefore,  a  verbal  agreement  id  made  by  a  lessor 
"With  his  tenant,  either  during  the  tenancy  or  after  its  termination, 
to  grant  another  lease  in  place  of  the  existing  one,  or  to  renew  the 
lease  after  the  expiration  of  the  prior  one,  or  to  sell  and  couvey  the 
land  itself,  the  possession  of  the  tenant  continued  as  under  the  former 
holding  cannot  of  itself  be  a  part  performance  of  the  agreement.  If 
the  original  tenancy  has  not  expired,  the  possession  must,  of  course, 
be  referred  to  that ;  if  it  has  expired,  the  possession  will  more  natu- 
rally be  accounted  for  by  the  tenant's  holding  over  than  by  a  new 
contract.  As  has  already  been  shown,  such  possession  does  not  raise 
a  presumption  as  to  the  intent  of  the  possessor,  as  is  the  case  where 
he  is  an  entire  stranger  to  the  estate ;  it  must  be  accompaiued  by 
some  further  act  on  the  part  of  the  tenant  in  order  to  stamp  its  char- 

(4)  Jones  v.  Peterman,  3  Serg.  &  R.  543  ;  Christy  v.  Barnhart,  14  Pa.  St.  (2 
Harris),  2G0  ;  Aitkin  v.  Young-,  12  Pa.  St.  (2  Jones)  15  ;  Poag  v.  Sandifer,  5  Rich. 
Eq.  170,  and  see  cases  cited  in  the  next  succeeding  note.  Wilmer  v.  Farris,  40 
Iowa,  300  (verbal  contract  of  sale  by  one  partner  to  another,  and  the  only  change 
was  the  withdrawal  of  tlie  vendor,  leaving  the  vendee  in  sole  possession,  not  a  jiart 
performance  enabling  tlie  vendee  to  enforce  the  contract ;  qu.,  might  not  it  have 
been  sufficient  to  enable  the  vendor  to  enforce  ?) ;  Moote  v.  Scriven,  33  Mich.  500 
(a  verbal  agreement  by  defendant  to  advance  money  for  the  purchase  of  land 
and  to  pay  off  incumbrances  on  it,  and  to  transfer  the  land  to  the  jjlaintiff  on  his 
repayment  of  the  advance  ;  the  plaintiff  was  in  possession  at  the  time  of  the  agree- 
ment, and  continued  in  possession,  and  did  no  other  acts  of  part  performance  ; 
Jield,  his  possession  not  a  sufficient  part  performance.  If,  however,  the  pur- 
chaser, although  in  possession  at  the  time  of  the  contract,  so  that  there  is  no 
change  of  his  possession  referable  to  it,  goes  on  and  makes  permanent  improve- 
ments, and  pays  part  or  all  the  price,  these  acts  ^^^ll  constitute  a  suflicicnt  jiart  per- 
formance) ;  Edwards  v.  Fry,  9  Kans.  417  ;  [Ducie  v.  Ford,  138  U.  S.  587  (two  par- 
ties had  located  and  claimed  a  lode ;  x^laintiffs  were  preparing  to  contest  defend- 
ant's application  for  a  patent  when  it  was  orally  agreed  that  they  should  relin- 
quish to  him  such  i>ossession  as  they  had,  in  consideration  of  his  agreeing  to 
purchase  the  land  on  their  joint  account.  Plaintiffs  withdi'ew  in  favor  of  defend- 
ant, and  refrained  from  prosecuting  their  claim  ;  defendant  took  out  a  jiatent  and 
worked  the  lode.  Held,  an  insufficient  part  performance  by  plaintiffs)  ;  Barnes 
V.  Boston  &  Maine  R.  R.,  130  Mass.  388  (oral  agreement  by  a  railroad  company 
to  release  to  a  person  a  parcel  of  land  included  in  its  location  and  owned  by  him 
at  the  time  the  location  was  filed  ;  his  continued  occupation  of  the  land  is  hot  a 
sufficient  part  performance  of  the  agreement,  being  referable  to  his  pre-existing 
title) ;  Peck  v.  Stanfield  (Wash.),  40  Pjic.  Rep.  635  (June  11, 1895)  ].    See,  also,  as 

179 


174  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

acter  and  connect  it  with  the  contract.(l)  Whenever,  after  the  expira- 
tion of  the  term,  the  tenant's  possession,  by  means  of  some  accompa- 
nying act  or  other  circumstances,  can  only  be  reasonably  accounted 
for  by  the  supposition  of  a  contract  for  a  renewed  lease,  it  is  a  good 
part  performance. (2)  It  is,  therefore,  now  settled,  after  some  expres- 
sions of  doubt,  and  with  a  few  conflicting  decisions,  that  possession 
by  a  tenant  after  the  expiration  of  his  former  term,  and  payment  by 
him  of  an  increased  rate  of  rent,  are  together  a  part  performance  of  a 
verbal  contract  for  a  renewal  of  the  lease.  (3)     In  like  manner,  such 

illustrations  of  the  general  rule  stated  in  the  text,  Peckham  v.  Barker,  8  R.  I.  17  ; 
Rosenthal  v.  Freeburger,  26  Md.  75  ;  Crawford  v.  Wick,  18  Ohio  St.  190  ;  Mahana 
V.  Blunt,  20  Iowa,  142 ;  [Felton  v.  Smith,  84  Ind.  485  (possession  taken  under  a 
previous  contract)  ;  Lamme  v.  Dodson,  4  Mont.  560  ;  Birbeck  v.  Kelly,  9  Atl. 
Rep.  (Pa.),  313  ;  Simmons  v.  Headlee,  102  Mo.  186  ;  overruling  S.  C,  94  Mo.  482 
(where  the  land  had  been  sold  on  execution  continued  possession  by  the  execu- 
tion debtor  does  not  unmistakably  point  to  a  contract  with  the  jpurchaser  at  the 
execution  sale)  ;  Swales  v.  Jackson,  126  Ind.  282  ;  Emmel  v.  Hayes,  102  Mo.  186  ; 
Taylor  v.  Yon  Schroeder  (Mo.),  16  S.  W.  Rep.  675  ;  Railsback  v.  Walke,  81  Ind. 
409  ;  Johns  v.  Johns,  67  Ind.  440  ;  Campbell  v.  Fetterman,  20  \V.  Va.  398.  Where 
the  previous  title  of  the  plaintiff,  a  mortgagor,  had  been  extinguished  by  fore- 
closure proceedings,  his  continued  jjossession  of  the  pi-emises  for  seventeen  years 
was  held  to  be  referable  to  a  parol  agreement  for  the  reconveyance  of  the  land, 
in  Cutler  v.  Babcock  (Wis.),  51  N.  W.  Rep.  420  ;  see,  also,  Lincoln  v.  Wright,  4 
De  G,  F.  &  J.  16  ;  Fisher  v.  Moolick,  13  Wis.  322]. 

(1)  Wills  V.  Stradling,  3  Yes.  381  ;  Smith  v.  Turner,  Prec.  Ch.  561;  Savage  v. 
Carroll,  1  Ball  &  B.  265 ;  Morphett  v.  Jones,  1  Sw.  181 ;  Seagood  v.  Meale,  Prec. 
Ch.  560  ;  Gregory  v.  Mighell,  IS  Yes.  328 ;  Kine  v.  Balfe,  2  Ball  &  B.  343  ;  Cole 
V.  Potts,  2  Stockt.  Ch.  67 ;  Smith  v.  Smith,  1  Rich.  Eq.  130  ;  Hatcher  v.  Hatcher, 
1  McMullan  Eq.  311,  318;  Anthony  v.  Leftwich,  3  Rand.  238,  256;  Johnston  v. 
Glancy,  4  Blackf.  94,  99  ;  West  v.  Flannagan,  4  Md.  36 ;  Workman  v.  Guthrie,  5 
Casey,  495,  572  ;  Jones  x\  Peterman,  3  Serg.  &  R.  543 ;  Christy  v.  Barnhart,  2 
Harris,  260  ;  Aitkin  v.  Young,  12  Pa.  St.  15  ;  Greenlee  v.  Greenlee,  22  Pa.  St.  225  ;. 
Wilde  V.  Fox,  1  Rand.  165 ;  Rosenthal  v.  Freeburger,  26  Md.  76  ;  Carroll  v.  Cox, 
15  Iowa,  455  ;  Mahana  v.  Blunt,  20  Iowa,  142  ;  Anderson  v.  Simpson,  21  Iowa, 
399  ;  Armstrong  v.  Katterhorn,  11  Ohio,  265  ;  Danforth  v.  Laney,  28  Ala.  274  ; 
[Linn  v.  McLean,  85  Ala.  2,50  ;  Lord's  Ajjpeal,  105  'Pa.  St.  451  ;  Koch  v.  National 
Union  Bldg.  Assn.  (111.),  27  N.  E.  530  ;  Bigler  v.  Baker  (Neb.)  58  N.  W.  1026]. 

(2)  Dowell  V.  Dew,  1  Y.  &  C.  C.  C.  345  ;  Pain  v.  Coombs,  1  De  G.  &  J.  34. 
And  the  same  is  true  of  a  piarchaser.  Although  in  possession  at  the  time  of  the 
contract,  still  if  he  afterwards  pays  part  or  all  of  the  price  and  makes  permanent 
improvements,  this  will  constitute  a  part  performance.  Edwards  v.  Fry,  9 
Kans.  417  ;  Brown  v.  Jones,  46  Barb.  400  ;  Spear  v.  Orendorf,  26  Md.  37  ;  Watson 
V.  Mahan,  20  Ind.  223  ;  Blunt  v.  Tomlin,  27  111.  93 ;  Holmes  v.  Holmes,  44  111. 
168;  Morrison  v.  Peay,  21  Ark.  110 ;  Howe's  Heirs  v.  Rogei-s,  32  Tex.  218. 

(3)  Wills  V.  Stradling,  3  Yes.  378 ;  Nunn  v.  Fabian,  L.  R.  1  Ch.  35 ;  Clarke  v. 
Reilly,  2  I.  R.  C.  L.  (Exch.),  422 ;  Howe  v.  Hall,  4  I.  R.  Eq.  242  Archbold  v.  Ld. 
Howth,  1  I.  R.  C.  L.  608 ;  Lincoln  v.  Wright,  4  De  G.  &  J.  16  ;  Spear  v.  Orendorf^ 

180 


PAUT  I'KliFOliMAXCK.  176 

possession  either  before  or  after  the  end  of  the  term,  aud  a  payment 
which  could  not  be  refen-ed  to  the  old  rent,  but  could  only  be 
explained  on  the  supposition  of  a  contract,  should  be  part  perform- 
ance of  a  contract  by  the  lessor  to  sell  and  convey  the  land.  It  is, 
also,  well  settled  that  a  tenant's  continued  possession,  and  the  making' 
by  him,  in  pursuance  of  stipulations  contiiined  in  the  agi'eement,  of 
substantial  improvements  on  the  land,  constitute  a  part  performance 
of  a  verbal  agreement  to  grant  a  renewal  of  the  lease,  or  it  would 
seem,  of  a  contract  to  convey  the  fee.(l)     These  improvements,  how- 

•26  Md.  37  ;  Wilde  v.  Fox;  1  Rand.  165  ;  Williams  v.  Landman,  8  Watts  &  S.  55  ; 
Shepheard  v.  Walker,  L.  R.  20  Eq.  659  ;  but  see  Rosenthal  v.  Freeburger,  26  Md. 
75.  In  Wills  V.  Stradling-,  Lord  Loughborough  said :  "  Payment  of  additional 
T&aiper  se  is  an  equivocal  circumstance,  it  is  true.  It  may  be  that  he  shall  hold 
over,  from  year  to  year,  the  lease  being' expired.  There  may  be  other  induce- 
ments. But  how  stands  the  averment  upon  this  plea  ?  It  is  that  the  landlord 
accepted  the  additional  rent  upon  the  foot  of  the  agreement.  Then  the  accept- 
ance upon  the  ground  of  the  agreement,  which  is  the  averment  ujion  this  plea,  is 
not  equivocal  at  all."  The  bill  alleging  such  an  agreement  and  a  possession  and 
payment  of  the  rent,  which  had  been  accepted  by  the  landloi-d  upon  the  strength 
of  the  agreement,  the  lord  chancellor  would  not  allow  the  bill  to  be  defeated  by  a 
plea  of  the  statute  of  frauds,  but  ordered  it  to  stand  as  an  answer  so  that  the 
issue  of  fact  raised  might  be  tried  and  decided  at  the  hearing.  In  Nunn  v. 
Fabian,  supra,  a  landlord  verbally  agreed  to  give  his  tenant  a  renewal  lease  for 
twenty-one  years  at  an  increased  rent,  with  the  option  of  purchasing  the  freehold, 
but  died  before  executing  the  lease.  The  tenant  had,  before  the  lessor's  death, 
paid  him  one  quarter's  rent  at  the  advanced  rate,  and  had  made  some  slight 
repairs.  Held,  by  Lord  Cranworth,  reversing  the  decision  of  the  M.  R.,  that  the 
possession  and  payment  of  rent  at  the  advanced  rate  amounted  to  a  part  per- 
formance, and  a  specific  execution  was  decreed  at  the  suit  of  the  tenant.  No 
stress  was  placed  upon  the  fact  of  the  repairs  in  this  case.  From  this  it  appeal"? 
that  the  payment  of  a  single  quarter  at  the  new  rate  is  sufficient,  and  on  principle 
it  should  be  as  much  as  the  payment  of  a  year's  rent  or  more,  for  it  points  with 
certainty  to  the  new  interest  created  by  the  agreement,  which  is  all  that  the  rule 
ever  requires. 

(1)  Wills  V.  Stradling,  3  Ves.  378,  382,  per  Lord  Loughborough  ;  Mundy  v. 
JoUiffe,  5  My.  &  Cr.  167,  reversing  9  Sim.  413  ;  Sutherland  v.  Briggs,  1  Hare,  26 ; 
Howe  V.  Hall,  4  I.  R.  Eq.  242;  Savage  v.  Carroll,  1  Ball  &  B.  265  ;  Dowell  v. 
Dew,  1  Y.  &  C.  C.  C.  345  ;  Mahon  v.  Baker,  2  Casey,  519  ;  Williams  v.  Evans, 
L.  R.  19  Eq.  547.  A.  a  tenant  in  possession  made  a  verbal  contract  with  the  land- 
lord for  a  lease  of  thirty  years.  A.  had  contracted  to  suli-let  to  B.,  and  B. 
expended  money  in  alterations  and  repairs  with  the  knowledge  and  approval  of 
the  landlord.  Held,  as  much  a  jiart  perfoi-niance  as  if  made  by  A.,  and  B.  was 
entitled  to  a  specific  execution  of  the  contract.  In  Mundy  v.  Jolliffe,  supra,  which 
is  the  leading  case  on  this  particular  jioint,  the  plaintiff',  a  tenant  of  a  farm  from 
year  to  year,  had  entered  into  a  parol  agreement  with  his  landloi-d,  the  defendant, 
for  a  lease,  and  in  pursuance  thereof  i-epaired  the  buildings,  drained  the  land, 
and  converted  the  only  piece  of  arable  land  belonging  to  the  farm  into  pasture 
land.     Lord  Cottenham  held  there  was  no  doubt  these  acts  constituted  a  part 

181 


176  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

ever,  must  be  of  such  an  extent  and  kind  that  they  are  reasonably- 
referable  to  the  new  agreement,  and  not  such  as  would  necessarily  or 
naturally  occur  under  the  old  condition  of  affaii's.(l)     Finally,  the 

pei'foi'inauce,  and  he  decreed  a  specitic  execution  of  the  conti-act,  reversing^  the 
decision  below  of  V.  C.  Shadwell.  In  Sutherland  v.  Bi-ig-gs,  supra,  the  plaintiff 
was  the  lessee  of  a  house  and  other  premises  for  thirty-one  years,  at  rent  of  60i.> 
and  was  bound  to  make  certain  improvements.  He,  also,  held  an  adjoining 
meadow  belonging  to  another  owner,  from  year  to  year,  for  9i.  rent.  The  land- 
lord of  the  house,  etc.,  bought  the  meadow  and  verbally  agreed  to  grant  a  lease 
of  the  same  to  the  plaintiff.  In  pursuance  of  the  stipulations  of  this  parol  bar- 
gain, the  improvements  were  made  more  extensive  than  was  befoi'e  contemplated  ; 
part  of  the  house  was  made  to  project  over  the  meadow,  and  part  of  the  meadow 
was  attached  to  the  original  premises  of  which  plaintiff  held  the  lease.  One-half 
of  the  expense  of  these  alterations  was  paid  by  the  plaintiff,  which  far  exceeded 
the  amount  he  had  covenanted  to  expend  for  improvements  by  his  lease,  and  he 
also  signed  a  written  pi-omise  to  pay  SOL  a  year  rent  for  the  whole  property.  In 
a  suit  for  a  specific  performance  of  the  contract  to  lease  the  meadow,  Sir  James 
WiGRAM,  V.  C,  held  that  the  extension  of  the  house  into  the  meadow  by  the 
plaintiff,  in  connection  with  the  landlord,  was  evidence  of  a  sufficient  consideration 
for  an  agreement  to  lease  the  meadow  ;  that  the  building  the  house  upon  the  mea- 
dow was  evidence  of  a  right  which  extended  to  the  whole  of  that  field,  and  which 
could  not  be  restricted  so  as  to  reach  only  that  part  of  the  meadow  upon  which 
the  building  actually  stood  ;  and  that  the  extension  of  the  house  into  the  meadow 
and  the  increase  and  consolidation  of  the  rents  into  one  annual  sum  was  evidence 
that  the  meadow  was  to  be  had  for  the  s°  me  time  as  the  premises  of  which  the  plain- 
tiff had  the  lease.  In  other  words,  the  verbal  agreement  concerning  the  meadow  had 
been  part  performed  by  the  plaintiff,  and  should  be  specifically  enforced.  On 
the  general  subject  of  the  part  performance,  the  vice  chancellor  said:  "The 
first  point  suggested,  rather  than  pressed,  was  that  the  plaintiff,  being  in  possession 
of  the  meadow  as  tenant  from  year  to  year,  the  exx^enditure  upon  the  property 
did  not  unequivocally  show  that  it  had  proceeded  upon  some  antecedent  contract 
■with  the  landlord.  Undoubtedly  it  is,  in  general,  necessary  that  an  act  of  part 
performance,  which  is  to  take  a  case  out  of  the  statute  of  frauds,  should  unequiv- 
ocally demonstrate  the  existence  of  some  contract  to  which  it  must  be  referred. 
Morphett  v.  Jones,  1  Sw.  172.  But  if  the  act  of  extending  the  house,  in  which  the 
tenant  had  an  interest  for  a  term  of  years,  into  the  meadow,  with  the  landlord's 
consent,  be  not  evidence  of  a  contract  between  them,  I  know  not  what  act  on  the 
part  of  a  tenant  in  possession  of  property  could  possibly  be  so  considered.  Cir- 
cumstances much  less  stringent  have  been  deemed  sufficient ;  and  if  the  case  of 
Mendy  v.  Jolliffe  may  be  considered  as  cori-ectly  illustrating  the  rule  of  this 
court,  as  to  the  acts  of  part  performance  which  will  take  a  case  out  of  the  statute, 
the  alterations  of  the  gai-den  fence  and  making  the  plantation  in  the  meadow, 
would  be  sufficient.  In  that  case,  the  expenditure  by  the  tenant  was  in  draining 
the  land,  and  the  court  decreed  Mr.  Jolliffe  to  grant  him  a  lease  upon  the  promise 
of  which  it  was  said  the  Expense  of  draining  had  been  incui-red."  [See,  also, 
Hibbert  v.  Aylott,  52  Tex.  530 ;  Morrison  v.  Herrick,  130  111.  631  (improvements 
costing  as'much  as  two  years'  rent,  sufficient  part  performance  of  agreement  to 
give  renewal  of  lease  for  five  years) ;  Wendall  ■?'  Hirt,  39  Hun,  382.  ] 

(1)  Brennan  v.  Bolton,  2  Dru.  &  "War.  349,  in  which  the  outlay  for  improvements 

relied  on,  was  not  greater  than  would  be  made  by  the  tenants  i»n  the  ordinary  course 

of  farming,  an  1  L.  Ch.  Sugden  held  that  it  would  be  against  all  au-thority  to  say 

that  such  acts  amounted  to  a  part  performance.     Frame  v.  Dawson,  14  Ves  385^ 

182 


PART  I'KKFomrANCK.  J  77 

possession  by  a  tenant,  together  with  further  acts  on  liis  part  whicli 
are  neither  payment  of  increased  rent  nor  improvements,  may  be  a 
sufficient  part  performance  of  such  a  verbal  agreement.  (1) 

Sec.  125.  It  follows,  as  a  necessary  corollary  from  the  rule  under 
discussion,  stated  in  section  128,  that  the  jtossession  which  shall  be  a 
sufficient  part  jierformanco  must  be  subsequent  in  point  of  time  tu 
the  contract  which  it  renders  binding;  and,  except  in  the  case  of  a  new 
agreement  between  a  tenant  and  his  landlord,  or  of  some  similar  reUi- 
tion,  the  act  of  taking  possession  must  be  performed  after,  or  at  all 
events  simultaneously  with,  the  conclusion  of  the  contract  between 
the  parties. (2)  Taking  possession,  therefore,  and  making  imi)rove- 
ments  in  anticipation  of  a  right  expected  to  arise  from  a  future 
contract  has  been  held  unavailably  as  part  performance  of  the 
verbal  contract  which  was  afterwards  actually  entered  into  ;(3)  nor 
even  a  possession  taken  at  the  time  when  the  negotiation  between 
the  parties  commenced,  although  such  negotiation  resulted  in  a  con- 
cluded agreement,  and  the  possession  was  continued  after  the  bargain 
was  thus  made. (4)  The  fui'ther  requisite  has  been  added  by  certain 
cases,  that  the  possession,  w'hen  taken  in  pursuance  and  execution  of 
a  verbal  contract,  must  be  continued  without  interruption  down  to 

(1)  Parker  v.  Smith,  1  Coll.  C.  C.  G08.  Four  tenants  in  partnership  held  a 
colliery  under  a  lease  which  had  several  years  yet  unexpired.  The  landlord 
entered  into  a  verbal  agreement  with  all  the  foui",  whereby,  on  the  surrcniler  of 
the  old  lease,  he  undertook  to  grant  a  new  one  to  two  of  them  (the.  plaintiffs),  it 
being  part  of  the  bargain  that  the  jiartnership  should  be  dissolved,  and  that  the 
two  who  wei'e  to  receive  the  new  lease  and  carry  on  the  business,  should  release 
the  other  two  from  all  liability.  The  partnership  was  therefore  dissolved,  and 
the  plaintiffs  released  to  the  retiring  members,  and  thereby  assumed  the  entire 
liability  of  the  old  firm  and  of  the  new  business.  The  two  members,  continuing 
in  possession,  brought  suit  for  a  specific  perfoi-mance,  and  the  possession  and  the 
acts  aforesaid  were  held  by  V.  C.  Knight  Bruce  to  be  a  part  performance.  He 
said  :  "  It  is  part  of  the  entire  agreement  that  the  dissolution  and  releasa  shall 
take  place.  They  do  take  place.  It  is  impossible  to  treat  these  acts  otherwise 
than  as  acts  of  part  performance,  taking  the  case  out  of  the  statute  of  frauds." 
This  case  furnishes  an  admirable  illustration  of  the  genei-al  doctrine  of  part  per- 
formance. The  plaintiffs  having  dissolved  their  firm  and  released  the  other  part- 
ners had  so  changed  their  own  position,  that  they  could  not  be  restored  to  their 
oi-iginal  situation,  nor  was  there  any  adcfjuate  compensation  in  damages.  The 
fundamental  pririciple  was  complied  with,  although  none  of  these  acts  concernec" 
the  subject-matter  of  the  contract — the  lands.     [See  2  Pom.  Eq.  Jur.  §  10r)4.] 

(2)  Christy  v.  Barnhart,  2  Harris,  2(50  ;  Aitkin  v.  Young,  2  Jone.«,  15  ;  Eckert 
V.  Eckert,  3  Penn.  332 ;  Dougan  v.  Blocher,  12  Harris,  23 ;  Reynolds  v.  Hewett, 
27  Pa.  St.  17G  ;  Meyei-s  i\  Byerly,  45  Pa.  St.  368. 

(3)  Eckert  t)  Eckert,  3  Penn.  332;  fMaxfield  v.  ^mi  (Utah),  23  P.ic.  R.  754 
(Mar.  1,  '00),  (po.ssession  under  a  i)revious  contract  of  which  the  one  in  suit 
is  a  renewal)  ]. 

(4)  Dougiui  V.  Iilochcr,    12  IlaiTis,  28. 

183 


178  SPECIFIC  PERFORMANCE   OF  COATRACTS. 

tlie  time  oi  commencing  the  equitable  suit  to  enforce  a  specific  per- 
formance of  such  ag-reement.(l;  It  is  certain  that  the  possession, 
after  it  has  once  commenced,  cannot  be  abandoned,  or  the  character 
of  it  changed  in  such  a  manner,  or  under  such  circumstances,  as  to 
show  an  intent  that  it  should  thereafter  be  refeiTed  to  some  other 
cause  than  the  contract,  or  an  intent  to  surrender  all  right  and  inter- 
est under  the  contract ;  by  such  an  abandonment  or  change,  all  the 
benefits  of  the  original  possession,  as  a  part  performance,  would  be 
lost,  and  in  this  sense  the  possession  must  be  retained  by  the  party 
who  relies  upon  it. (2)  To  conclude  this  branch  of  the  discussion,  it 
should  be  remembered  that  possession  by  the  purchaser  or  intended 
lessee,  under  a  verbal  agreement  to  convey  or  to  lease,  does  not  relieve 
him  from  any  of  the  obligations  resting  upon  him  as  a  condition  to 
the  enforcement  of  a  specific  performance  —  such,  for  example,  as 
the  duties  to  exercise  diligence  and  good  faith  on  his  own  part, 
and  to  perform  whatever  he  is  bound  to  do  by  the  terms  of  the  con- 
tract ;  and  a  failure  in  these  respects  will  generally  be  a  sufficient 
gi'ound  for  refusing  to  grant  the  equitable  remedy  of  specific  execu- 
tion. (3) 

Sec.  126.  6.  Improvements.  The  making  of  valuable  permanent 
improvements  on  the  land  by  a  vendee  or  lessee,  in  pursuance  of  the 
agreement,  and  with  the  knowledge  of  the  other  party,  is  always 
considered  to  be  the  strongest  and  most  unequivocal  act  of  part  per- 
formance by  which  a  verbal  contract  to  sell  and  convey,  or  to  lease,  is 

(1)  Dougan  v.  Blocher,  24  Pa.  St.  (12  Harris)  28 ;  Mmidorff  v.  Howard,  4  Md. 
459.  It  is  difficult  to  see  any  i-easonabie  ground,  upon  principle,  foi-  this  partic- 
ular requirement,  unless  the  possession  is  abandoned  or  changed  in  such  a 
manner  or  under  such  circumstances,  as  to  show  an  intent  that  it  should  be 
referred  to  some  other  cause  than  the  ccnti-act  in  question,  or  an  intent  to  sur- 
render all  right  and  claim  under  the  contract.  After  the  possession  has  com- 
menced and  lasted  for  a  time,  it  seems  possible  that  it  should  be  interrupted  or 
suspended  by  the  vendee,  from  a  variety  of  motives,  without  necessarily  showing 
a  design  on  his  part  thereby  to  give  up  or  waive  his  rights  under  the  agreement; 
noi"  does  there  seem  to  be  any  good  reason  why  such  a  tem^iorary  suspension  or 
interruption  should  necessarily  opei-ate  as  a  waiver. 

(2)  A  purchaser  took  possession  in  pursuance  of  his  verbal  conti-act,  but  after- 
wards attorned  to  the  vendor  as  his  landlord  ;  this  act,  it  was  held,  changed  the 
character  of  the  possession ;  it  could  no  longer  be  accounted  for  by  the  agree- 
ment to  sell  and  convey,  but  was  merely  an  occupancy  by  a  tenant.  Rankin  v. 
Simpson,  19  Pa.  St.  471  ;  Dougan  v.  Blocher,  24  Pa.  St.  28.  [See,  also,  Day  v.  Cohn, 
55  Cal.  508.  But  a  temporary  suspension  of  possession,  not  indicating  an  intention 
to  surrender  rights  umler  the  contract,  will  not  defeat  the  plaintiffs  claim  ;  Drum 
V.  Stevens,  94  Ind.  181.  ]  In  Pennsylvania,  it  is  also  decided  that  the  i^ossession  must 
be  taken  in  the  Hfe-time  of  the  vendor.     Sage  v.  McGuire,  4  Watts  &  Serg.  228,  229. 

(3)  McCIellan  v  Darrah,  50  111  240  ;  Dougan  v-  Blocher.  24  Pa.  St.  28,  33. 
This  subject  is  fully  treated  in  a  subsecpieiit  chaptpi". 

ia4 


PART   I'KlitOliMA.WK.  179 

taken  out  of  the  statute. (1).  It  is  very  plain  that  such  proceedings 
satisfy  the  equitable  principle  upon  which  the  doctrine  of  part  per- 
formance rests,  much  more  completely  than  a  mere  possession  does. 
If  the  purchaser  has  simply  taken  possession,  it  might  seem  possible 
for  him  to  be  restored  to  his  former  situation,  and  to  be  compensated 
in  damages;  but  when  he  has  made  outlays  for  valuable  and  i)erma- 

(1)  Wells  V.  Stradling',  3  Ves.  378,  per  Lord  Lou(iHBAU(iii  ;  Savage  v.  Foster,  5 
Vin.  Abr.  524,  i»l.  43,  when  an  intended  lessee  entered  and  built ;  ISutherland  v. 
Briggs,  1  Ha.  2(5 ;  Stockley  y.  Stockley,  1  V.  &  B.  23 ;  Toole  v.  Medlicott,  1  Ball 
&  B.  393 ;  Mundy  v  Jolliffe,  5  My.  &  Co.  107  ;  Suvcome  i).  Penniger,  3  DeG.  M. 
&  G.  571 ;  Floyd  v.  Buckland,  2  Fi-eem.  2G8 ;  2  E(i.  Cas.  Abr.  44 ;  Moi-timer  v. 
Orchard,  2  Ves.  243 ;  Wheeler  v.  D'Esterre,  2  Dow.  359  ;  Norris  v.  Juck.son,  10 
W.  R.  228  ;  Crook  v.  Corporation  of  Seaford,  L.  R.,  6  ch.  551  ;  10  Eip  078  ;  Wil- 
liams V.  Evans,  L.  R.  19  Etj.  547  ;  Coles  v.  Pilkington,  L.  R.  19  Eq.  174  ;  Wilson 
V.  West  Harthlepool  Ry.  Co.,  2  DeG.  J.  &  S.  475  ;  Wilton  v.  Harwood,  23  Me. 
133,  134  ;  Newton  v.  Swazey,  8  N.  H.  9,  14  ;  Miller  v.  Tobie,  41  N.  H.  84  ;  Wet- 
moi-e  V.  White,  2  Caine  Cas.  87,  109  ;  Pai-khui'st  v.  Van  Cortlaml,  14  Johns.  15  ; 
Adams  v.  Rockwell,  16  Wend.  285  ;  Harder  v.  Hardei-,  2  Sandf.  Ch.  17  ;  Ca-sler  v. 
Thompson,  3  Gi-een.  Ch.  59  ;  Martin  v.  McCord,  5  Watts,  493 ;  Syler  v.  Eckhart,  1 
Binney,  378  ;  Simmons  v.  Hill,  4  Har.  &  McHen.  252 ;  Harrison  v.  Harrison,  1 
Md.  Ch.  331  ;  Shepherd  v.  Be  vin,  9  Gill.  32  ;  Rowton  v.  Rowton,  1  Hen.  &  Mun. 
(Va.)  92;  Wilkinson  v.  Wilkinson,  1  Dessau.  Ch.  201  ;  Minis  «.  Lockett,  33  Geo. 
9 ;  Byrd  v.  Odem,  9  Ala.  756,  764  ;  Cvimmings  v.  Gill,  6  Ala.  562  ;  Brock  v. 
Cook,  3  Port.  (Ala.)  464  ;  Finucane  v.  Kearney,  1  Freeman,  Ch.  65.  69  ;  Farley  v. 
Stokes,  1  Sel.  Eq  Cas.  (Pa.)  422;  Blakeney  v.  Ferguson,  3  Eng.  (Ark.)  272; 
Ottenhouse  v.  Burleson,  11  Tex.  87  ;  Dugan  v.  Colville,  8  Tex.  126  ;  Johnson  v. 
McGruder,  15  Mo.  365;  Despain  ■».  Carter,  21  Mo.  331;  Cummins  •?).  Nutt, 
Wright  (Ohio),  713 ;  Moreland  v.  Le  Masters,  4  Blackf.  383,  ."85 ;  Underbill  v. 
Williams,  7  Blackf.  125  ;  School  District  No.  3  v.  McLoon,  4  Wise.  79 ;  Morin  v. 
Martz.  13  Minn.  191  ;  Johnson  v.  Glancy,  4  Blackf.  94 ;  Tibbs  V.  Barker,  1 
Blackf.  58  ;  Thoi-nton  i\  Henry,  2  Scam.  218  ;  Boinier  v.  Caldwell,  Hari'ing.  Ch. 
■67,  and  see  cases  cited  under  section  117.  [Hari-isnn  v.  Polar  Star  Lodge,  116  III. 
279 ;  Anderson  v.  Schockley,  82  Mo.  250,  255  ;  Anderson  v.  Pemberton,  89  Mo.  65  ; 
Dougherty  v.  Harsel,  91  Mo.  161,  167  ;  Anderson  v  Scott,  94  Mo.  637,  644  ;  John- 
son V.  Hurley  (Mo  ),  22  S.  W  492  >  Moore  v.  Gordon,  44  Ark.  334,  341 ;  Sullivan 
1).  O'Neil,  66  Tex.  433;  Evergreen  Cemetery  Assn  v  Armsti-ong  (Minn  ),  34  N. 
W.  33  (assent  of  the  vendor  to  the  improvements  sufficiently  indicated).  ]  In  Crook 
V.  Corji'n  of  Seaford,  L.  R  6  Ch.  551 ;  10  Eq.  678,  a  municipal  corjjoration  pa.sse<l 
a  resolution,  in  1860,  to  lease  to  the  plaintiff  the  flat  part  of  the  .sea  beach  opposite 
to  his  land,  for  300  years,  at  a  nominal  rent.  He  took  possession  of  the  beach 
between  lines  di-awn  in  prolongation  of  the  sides  of  his  lot,  and  built  a  wall  and 
tei-race  along  such  part.  In  1864,  th(!  coi-poration  gave  him  notice  to  cpiit,  and  in 
1869  brouglit  ejectment.  He  then  sued  for  a  specific  performance.  Held,  a  good 
part  perfoi-mance.  and  the  corporation  bound,  .although  their  agreement  was  not 
under  seal,  and  therefore  not  binding  jit  law,  and  they  were  ordered  to  execute  a 
lease.  In  Williams  v.  Evans,  L.  R.  19  Etp  547,  A.,  a  tenant  in  pos.ses.sion,  ma<le 
a  verbal  contract  for  a  lease  of  thirty  years  with  defendant.  A  had  contractetl 
to  sublet  to  B  ,  and  B.  hatl  exjiended  money  in  repairs  and  alterations,  with  the 
knowledge  and  approval  of  the  lessor.  Held,  as  much  a  jiai-t  performancf!  a.i  if 
made  by  A  ,  who  was  entitled  to  a  specific  performance.  In  Coles  v.  Pilkington, 
L   R.  19  E(p  174,  a  verbal  agreenumt  was  n?.ade-  to  allow  plaintilf  to  occupy  a 

185 


180  SPECIFIC  FEKJiOR3IA]\'CE    OF  CONTRACTS. 

nent  improvements,  and  tlius  changed  the  character  of  the  property, 
it  would  be  in  the  highest  degree  unjust  for  the  owner,  who  has 
permitted  these  expenditures  and  alterations  to  be  made  in  reliance 
upon  the  agreement,  to  interi)()«e  the  statute  and  prevent  the  comple- 
tion of  his  contract,  and  at  the  same  time  retain  and  enjoy  all  the 
benefit  of  the  additional  value  imparted  to  his  land.  For  these 
reasons,  the  courts  have  never  hesitated  to  assert  and  enforce  the  rule 
as  above  stated.  There  are  important  differences  in  the  quality  of 
the  act  considered  as  a  part  performance,  between  possession  and  the 
making  of  improvements.  In  the  first  place,  mere  possession  might 
be  explained  by  a  tenancy  at  will,  while  expenditures"  upon  perma- 
nent and  valuable  improvements  cannot  be  reasonably  accounted  for, 
except  upon  the  supposition  of  an  actual  interest  or  estate  in  the 
land,  not  depending  upon  any  contingency,  or  liable  to  be  suddenly 
terminated.  /Secondly/.  As  the  possession  of  a  stranger  cannot,  in 
general,  continue  long  without  the  owner's  knowledge,  it  naturally 
follows,  as  has  already  been  shown,  that  from  the  fact  of  such  posses- 
sion without  objection,  a  prima  facie  presumption  arises  that  it  was 
taken  and  has  continued  with  the  owner's  consent,  and  no  direct 
evidence  of  such  consent  is  necessary;  but,  on  the  other  hand,  as 
improvements  might  easily  be  made  without  the  owner's  knowledge, 
no  such  presumption  arises  from  the  mere  fact  that  valuable  and  per- 
manent improvements  have  been  made  by  the  purchaser  or  lessee, 
and  he  must  prove  the  vendor's  consent  thereto  by  additional  evi- 
dence. 

Sec,  127.  That  the  making  of  improvements  shall  be  a  part  per- 
formance, they  must  possess  certain  qualities — as  is  true  in  the  case 
of  possession ;  and  these  essential  attributes  I  now  proceed  to 
describe  :  1.  The  improvements  must  be  of  a  kind  which  would  nat- 
urally and  reasonably  be  done  under  a  contract,  so  as  to  indicate  the 
existence  of  a  contract  to  account  for  them ;  they  must  be  made  on. 
the  faith  of  the  contract,  and  must  of  course  be  subsequent  to  it.(l) 
Thi:s  rule  is  a  i)articular  instance  of  the  general  principle  which  gov- 
erns all  species  of  part  performance,  and  has  already  been  discussed 
with  sufficient  fullness.  Tf,  therefore,  improvements  are  made  under 
such  circumstances,  or  by  a  person  holding  such  relations  to  the  legal 
owner  of  the  land,  that  a  contract  need  not  be  reasonably  assumed  in 

leasehold  house  for  her  life,  on  payment  merely  of  the  groimd  rent,  rates,  and 
taxes  She  took  possession,  and  on  account  of  the  agreement,  changed  her  whole 
mode  of  life  ;  this  was  hehl  a  sufficient  part  jierformance. 

(I)  Hamilton  v.  Jones,  3  Gill  &  J.    127 ;  Byi-ne  v.  Romaine,  2  Edw.   Ch.  445 ; 
Farley  v.  Stokes.  1  Sel  Eii.  Cas.   (Pa.)  423;  Carlisle  v.  Fleming,  Harring,    Ch. 
421.     See,  also,  cases  illusti-ating  the  same  rule  as  applied  to  possession,  a?ite, 
§§  123,  125 ;  Wood  v.  Thornly,  58  111.  464. 
186 


PART  PERFORMAyCE.  181 

order  to  explain  them,  they  will  not,  any  more  than  mere  possession, 
be  availing  as  a  part  performance. (1)  The  opinion  has  been  main- 
tained that  the  improvements  must  not  only  be  made  iii)on  the  faith 
of  the  agreement  and  witli  tlic  assent  of  the  vendor,  V)iit  also  that 
they  must  have  betMi  acTually  stipulated  for  by  its  terms,  since,  as  it 
is  argued,  they  cannot  otherwise  be  said  to  be  in  cXfculian  of  the  con- 
tract.(2)  No  decision,  however,  has  turned  upon  this  alleged  require- 
ment, and  the  conchision  itself  is  drawn  from  a  very  technical  notion 
of  executing  a  contract.  It  is  well  settled  that  possession  need  not 
be  provideci  for  in  the  agreement,  but  if  taken  in  pursuance  of  it — 
that  is,  because  of  it,  such  possession  is  none  the  less  in  execution  of 
it. (3)  If  a  verbal  contract  is  made  to  sell  and  convey  a  tract  of  land, 
the  purchaser  becomes  thereby  vested  with  the  equitable  title,  and 
any  acts  done  upon  the  land  by  him  as  owner,  or  which  proceed  from 
and  tend  to  show  such  ownership,  are  in  fact  done  in  execution  of  the 
contract — in  other  words,  they  carry  the  contract  into  effect.  No  acts 
more  clearly  indicate  a  proprietorship  in  the  purchaser,  and  therefore 
point  more  unequivocally  to  the  agreement  from  which  such  proprie- 
torship arises,  than  the  making  of  valuable  and  permanent  improve- 
ments on  the  land ;  and  this  result  is  evidently  the  same,  whether 
the  improvements  were  stipulated  for  or  not ;  indeed,  the  making 
improvements,  when  the  contract  was  utterly  silent  in  reference 
thereto,  is  perhaps  the  more  emphatic  assertion  of  the  purchaser's 
interest,  of  his  ec^uitable  estate,  and  of  his  purpose  to  carry  the  agree- 
ment into  effect.  The  opinion  above  referred  to,  })lainly  rests  upon 
no  foundation  of  principle,  is  opposed  to  the  equitable  theory  of  part 
performance,  and  is  not  sustained  by  decisions  of  authority. 

Sec.  128.  2.  The  improvements,  in  order  to  avail  as  a  part  per- 
formance, nnist  not  only  be  valuable,  but  must  be  permanent  in  their 
nature  and  beneficial  to  the  estate.(4)     We  have  seen  that  when  a 

(1)  As,  for  example,  improvementa  by  a  son  made  on  land  owned  by  his  fathei'. 
Eckert  v.  Eckei-t,  B  Perm.  3B2  Haines  v.  Haines,  G  Md  43r) ;  [and  ini])i-ovenients  by 
a  husband  on  land  owned  l)y  his  wife  ;  Rog-ers  -?'.  Wolfe,  104  Mo.  1.  In  Abbott 
■y.  Baldwin,  Gl  N.  H.  ijSB,  it  was  held  that  a  pui-chaserof  land  by  verbal  cimtract 
who  sclLs  the  land  to  a  third  person  and  sulise([Ufntly  repurchases  it,  eaiuiot,  in 
a  suit  for  specilie  pei-formance,  avail  himself  of  the  imin-ovements  made  by  such 
third  person,  as  a  jnirt  performance  of  the  conti-act]. 

(2)  This  ])osition  is  taken  by  Mr.  Roberts,  wlio  insists  that  miless  the  improve- 
ments are  bai-fi:ained  for  in  the  contract,  they  cannot  be  i-cilied  on  as  a  part  ])er- 
formance ;  and  the  lang-uag-e  of  cei-tain  cases  may  be  reg-arded  as  suppoi-ting- 
this  view.     Roberts  on  Fraud,  \t.  13.5. 

(3)  Seefflwic,  §§  117,  123. 

(4)  See  cases  ante,  §  12G  ;  [Chamberlain  v.  Manning,  41  N.  J.  Kq.  G51  ;  Moore 
V.  Gordon,  44  Ark.  334] ;  Hollis  v.  Edwards,  1  Vern.  l.'JO  ;  Deane  i\  I/aid,  1 
Vem.  1.'j9;  Daven])ort  v.  Mason,  I.t  Mass.  92;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72 j 
Wack  V.  Sorber,  2  Whart.  387;  Hamilton  v.  Jones,  3  (till  iV:  .1.  127.     In  this  lai^t 

lb7 


182  SPECIFIC   FERFORMANCR    OF    CONTRACTS. 

tenant  in  possession  relies  upon  his  improvements  to  support  a  parol 
agreement  for  a  renewal,  they  must  be  something  more  than  the  ordi- 
nary employment  of  the  land,  or  the  beneficial  effects  which  would 
result  from  its  customary  use  of  the  land  according  to  the  terms  of 
his  former  holding. (1)  The  same  principle  inust  apply,  under  the 
changed  circumstances,  to  every  verbal  contract  for  the  sale  or  lease 
of  laud.  Improvements,  so  far  as  they  are  to  constitute  a  part  per- 
formance, must  go  further  than  an  ordinary  use  of  the  premises  ;  they 
must  add  some  permanent  and  substantial  benefit  to  the  corpus  of 
the  soil.  In  the  foot  note  I  have  collected  a  number  of  cases  which 
show  what  acts  have  been  held  in  compliance  with  the  rule. (2)  If 
the  outlays  have  permanently  benefited  the  estate,  it  is  not  required 
in  addition,  that  they  should  have  been  judicious.  There  are  two 
reasons  for  this  conclusion  :  First,  it  would  t>ften  require  a  long, 
difficult  and  perplexing  examination  if  the  court  were  bound  to 
decide  this  collateral  issue  as  to  the  expediency  of  the  purchaser's 
proceedings;  ^wd  secondly,  \\,  would  always  be  highly  unjust,  if  the 
owner,  who  would  retain  the  improvements  confessedly  valuable  and 
beneficial  to  his  property,  were  allowed  to  defeat  his  agreement  upon 
the  plea  that  they  were  injudicious. (3) 

Sec.  129.  3.  The  circumstances  of  the  case,  and  the  relations  of  the 
parties  must  be  such  that  the  loss  of  his  improvements,  resulting  from 
a  failure  to  complete  the  agreement,  w^ould  be  an  actual  sacrifice  on 
the  part  of  the  purchaser.  On  this  ground,  it  has  been  held  that 
the  vendee  cannot  enforce  a  specific  performance  of  the  agreement, 
when  he  has  gained  more  by  the  possession  and  use  of  the  land  than 
he  loses  by  giving  up  the  improvements  which  he  has  made  ;(4)  or 
when  he  has  been  fully  compensated  for  his  outlays  in  making  the 
improvements.  (5)     I  cannot  think  that  these  decisions  can  be  recon- 

case,  the  iilaintifF,  a  mill  owner,  had  made  a  verbal  agreement  with  the  owner  of 
adjoining-  land,  for  the  purchase  of  a  portion  thereof.  The  jilaintifF  then,  at  his 
own  expense,  dug-  a  ditch  through  said  land  by  which  to  supply  his  own  mill 
with  water.  This  act  was  held  not  a  part  performance  of  the  contract,  because, 
although  the  plaintiff  expended  money,  the  ditch  which  he  dug  was  no  benefit  to 
the  land  through  which  it  i-an,  but  rather  an  injury;  it  was  a  benefit  only  to 
other  land  owned  by  the  plaintiff,  and  so  did  not  meet  the  requirements  of  the  sale. 
See,  also,  Ann  Berta  Lodge  v.  Levei-ton,  43  Tex.  18  ;  Peckham  v  Barker,  8  R.  I. 
17  ;  Mimst).  Lockett,  33  Geo.  9  ;  [Miller  v.  Zufall,  113  Pa.  St.  317,  323  ;  Barrett  v. 
Geisinger,  148  111  98  ;  Lord's  Appeal,  105  Pa.  St.  4.">1.  It  is  not  necessary  that 
improvements  be  of  such  a  character  as  not  to  admit  of  compensation  ;  Jamison 
V.  Dimock,  95  Pa.  St.  52]. 

(1)  Ante,  §  124. 

(2)  Whether  the  impi'ovements  must  amount  to  an  occuiiation.  Ackerman  v. 
Fisher,  57  Pa.  St.  457,  and  see  cases  cited  undei-  section  117.  [Bevans  v.  Young, 
13  N.  Y.  S.  497,  J 

(3)  W  hit  bread  v  Brockhurst.  1  Bro.  C.  C.  417,  ]m'i-  Lord  Thurlow,  "whether 
the  money  has  been  well  or  ill  laid  out  i.s  indifferent  ;  the  fraud  is  the  same." 

(4)  Wacktn  Sorber.  2  Whart.  387.  [See.  atso,  Gallagher  v.  Gallagher,  31  W. 
Va   9  ;  Burns  v.  Daggett,  141  Mass.  368,  375  ;  Eason  ?)  ^Eason,  61  Tex.  225,  227.] 

(5)  Eckert  v.  Eckert,  3  Penn.  332 ;  Ash  v  Daggy,  6  Porter  (Ind.),  259.  It  may  be 
remarked  that  the  Pennsylvania  court  have  sho\\ni  a  strong  bias  against  the  entii-e 

188 


PART  PKKFORMANCK.  18H 

ciled  with  the  principles  of  equity,  wliich  are  ^^enerally  ucceitttMl  as 
governing  the  subject  of  part  porforuiance.  Ecpiity  «loe.s  not,  under 
any  circumstances,  permit  the  owner  both  to  retain  liis  laud  and  to 
enjoy,  without  return,  the  benelit  of  tlie  iuiproveuient.s  which  the 
purchaser  has  made  on  the  faith  of  his  contract,  If  the  court  refuses 
to  enforce  a  verbal  agreement  because  its  terms  are  not  proved  with 
certainty,  or  because  the  acts  of  part  performance  are  not  sufficiently 
made  out,  it  will  nevertheless  compel  the  vendor  to  compensate  the 
purchaser  for  the  fair  value  of  whatever  substantial  improvements  he 
has  made.(l)  The  effect  of  improvements,  in  connection  with  posses- 
sion, has  already  been  described  under  the  preceding  subdivision. (2) 
It  should  be  remembered  that  many  of  the  essential  qualities  and 
incidents  of  a  possession,  in  order  that  it  should  constitute  a  part 
performance,  are  also  necessary  in  the  case  of  improvements ;  especi- 

doctrine  of  part  performance,  as  a  means  of  avoiding  the  statute  of  frauds,  and 
have  restricted  its  operation  within  narrow  limits.  It  may  well  be  doubted 
whether  these  decisions  would  be  regarded  as  authoritative  in  states  where  the 
equitable  jurisdiction  is  recog-nized  to  its  full  extent.  In  Ann  Berta  Lodge  t». 
Leverton,  42  Tex.  18,  it  was  held  that  possession  by  the  vendee,  and  his  expendi- 
ture for  improvements,  of  an  amount  not  exceeding  the  sum  received  by  him  for 
the  rents  of  the  premises,  did  not  amount  to  a  sutticient  jiart  perlbrmance.  Here 
the  court  utterly  ignored  the  fact  of  possession  as  a  sutticient  part  performance-. 
in  itself.  [This  is  the  settled  rule  in  Texas.  See  Bradley  v.  Owsley  (Tex.),  11  8. 
W.  Rep.  1052,  and  other  cases  cited.]  In  the  ca-se  of  Mims  v.  Lockett,  33  Geo.  9,. 
the  court  laid  down  a  very  different,  and  in  my  opinion  the  correct  doctrine  ;  it 
held  that  possession  and  the  making  of  improvements  by  the  vendee  are  a 
sufHcient  part  performance  of  a  verbal  contract  of  sale,  without  regard  to  the 
amount  of  benefits  received  by  the  vendee  from  the  use  of  the  land,  in  comparison 
with  the  sum  expended  by  him  for  improvements;  that  the  value  of  these  bone- 
tits  equaled  or  exceeded  the  expenditure  for  improvements  was  immaterial,  and 
the  fact  that  the  vendee  had  been  compensated  for  the  improvements  by  the  use 
and  income  of  the  land,  -was  no  defense  to  his  suit  for  a  specific  performance. 
This  decision,  in  my  opinion,  rests  firmly  upon  the  principle  which  underlies, 
the  doctnne  of  part  performance;  while  the  few  decisions  which  would  %-irtually 
require  the  court,  in  every  case,  to  strike  a  balance  between  the  ventlee's  bene- 
fits and  outlays,  his  receipts  and  expenditures,  and  decide  for  or  against  him, 
according  to  the  result  of  the  balance  beuig  imfavorable  or  favorable  to  him — 
these  decisions  loose  sight  of  the  equitable  basis  of  confidence  and  reliance  upon  the 
good  faith  of  the  vendor,  on  which  the  whole  theory  of  part  performance  is  rested. 

(1)  Lord  Pengall  o.  Ross,  2  E(i.  Cas.  Al)r.  40,  pi.  12  ;  Pai-khurst  v.  Van  Cortland, 
1  Johns.  Ch.  273 ;  Wack  v.  Sorber,  2  Whart.  387 ;  Ileft  v.  McGill,  3  Barr.  2r)G  ;. 
Ilanlen  1)  Hays,  9  Barr.  151;  Anthony  v.  Leftwich,  3  Rand.  255;  Goodwin  v. 
Lyon,  4  Port.  (Ala.)  297;  [.Shaifer's  Appeal,  110  Pa.  St.  382].  Even  in  North 
Carolina,  where  the  entire  doctrine  of  part  performance  taking  a  verbal  contract 
out  of  the  statute,  has  been  rejected  compensation  is  decreed  to  the  vendee  for 
his  outlays,  although  he  fails  to  obtain  a  performance  of  the  agreement.  Albea 
V.  Griffin,  2  Dev.  &  Bat.  E q.  9  ;  Baker  v.  Cai-son,  1  Dev.  &  Bat.  Eii.  381  ;  Dunn 
V.  Moore,  3  Ired.  Eq.  3G4. 

(2)  See  ante,  §  117. 

189 


184  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

ally  the  outlays  must  be  made  with  the  consent,  express  or  implied, 
of  the  vendor,  and  this  consent  is  not  presumed  from  the  mere  fact  of 
their  being  made ;  knowledge  on  his  part,  and  the  absence  of  objec- 
tion, must  at  least  be  proved. 

8ec.  130.  The  making  of  valuable  improvements  by  a  donee  in  pos- 
session, is  also  regarded  by  courts  of  equity  as  furnishing  a  sufficient 
ground  for  decreeing  the  specific  execution  of  a  parol  gift  of  lands, 
either  when  the  gift  is  made  to  a  relative,  or  in  anticipation  of  marriage, 
or  in  the  nature  of  an  advancement,  or  when  it  is  purely  charitable. (1) 
Possession  alone  is  not  sufficient.  A  parol  gift  of  land,  even  from 
father  to  son,  will  not  be  enforced  unless  followed  by  possession  and 
by  valuable  improvements  made  by  the  donee,  or  unless  there  are 
some  other  special  facts  which  would  render  the  failure  to  complete 
the  donation  peculiarly  inequitable  and  unjust.  This  rule,  however, 
has  no  connection  with  the  statute  of  frauds.  In  order  to  grant  its 
remedy  of  a  specific  execution,  equity  requires  a  valuable  considera- 
tion— it  never  enforces  a  voluntary  agreement.  The  statute  of  frauds 
is  satisfied  by  possession  as  a  part  performance,  and  the  general  doc- 
trines of  equity  demand,  in  addition  thereto,  a  valuable  consideration. 
This  latter  demand  is  answered  by  the  outlays,  expenditures,  and 
labors  of  the  donee  in  making  the  valuable  improvements  as  a  conse- 
quence of  the  gift. (2)  The  doctrine,  therefore,  has  been  generally 
accepted  that,  when  the  donee  takes  possession  and  makes  outlays 
upon  valuable   and   substantial   improvements,  in  execution  of  the 


(1)  McLain  v.  School  Directors,  51  Pa.  St.  196. 

(2)  Stewart  v.  Stewart,  S  Watts,  253,  255  ;  Eckert  v.  Eckert,  3  Penn.  332 ; 
Eckert  v.  Mace,  3  Penn.  364,  n.  ;  Pinckard  v.  Pinckard,  23  Ala.  649.  In  Stewart 
V.  Stewart,  supra,  it  was  said :  "To  take  a  parol  contract  out  of  the  statute,  it  is 
necessary  not  only  that  it  be  partly  performed  by  delivery  of  the  possession,  but 
that  it  be  on  a  valuable  consideration  paid,  or  secured  to  be  paid ;  or,  in  the  case 
of  a  gift,  that  there  be  an  expenditure  of  money  or  labor  in  consequence  of  it, 
which  comes  to  the  same  thing-;  and  this  for  the  plain  reason  that  no  equity 
arises  from  the  naked  delivery  of  the  possession,  and  without  a  specific  equity, 
a  chancellor  would  not  interfei'ft  to  compel  a  conveyance  or  execution  of  the  con- 
tract." That  equity  does  not  enforce  an  executory  promise  to  make  a  donation, 
or  an  executory  voluntary  ag-reement  to  give  or  to  create  a  trust,  although  in 
writing,  see  estate  of  Webb,  49  Cal  542,  and  other  cases  cited  in  section  two  of 
this  chapter,  on  the  necessity  of  consideration.  The  following  are  additional  cases 
illustrating  the  rules  stated  in  the  text.  Galbraith  v.  Galbraith,  5  Kans.  402. 
A  verbal  gift  of  land  by  father  to  his  son,  with  agreement  to  convey  upon  cer- 
tain conditions,  was  held  to  have  been  part  performed  by  the  donee's  taking" 
possession,  and  making  permanent  improvements  with  the  donor's  consent. 
Neale  v.  Neale,  9  Wall.  1.  A  son  being  about  to  marry,  his  father  agi-eed  verbally 
to  convey  to  the  intended  wife  a  certain  piece  of  land,  and  she  verbally  agreed  to 

190 


PAliT    riCKFOhWANCE.  185 

donation,  or  does  other  analo^'-oiis  acts,  which  would  rondcr  a  revoca- 
tion or  refusal  to  conipU^te  iuequitabh?,  a  i)arol  ^aft  of"  land  will  be 
specifically  enforced,  since  the  labor  and  ex[)enditures  of  the  donee 
supply  a  valuable  ct)usideratiou,  while  the  i)osse.ssion  and  betterments 
constitute  a  part  performance  which  obviates  the  statute  of  frauds. (1) 
This  doctrine  lias  been  criticised  in  some  American  decisions,  and 
wholly  repudiated  by  others. (2) 

►Sec.  1:>1.  iSli^^dit  and  temporary  improvements  or  trivial  outlays, 
however,  do  not  raise  an' equity  in  favor  of  the  donee  to  have  the  gift 
enforced;  nor  does  the  court  grant  its  specific  remedy  when  the 
expenditure  was  not  made  in  consequence  of  the  gift,  nor,  it  seems, 
when  the  donee  has  been  compensated  for  his  outlays  by  the  rents 

erect  a  house  on  it  with  her  own  money  ;  the  mavriag-e  took  phice,  the  ]iossession 
was  delivered  by  the  father,  and  the  (hiug'hter-in-hiw  built  the  liousi;  ;  ujion 
these  facts  the  father  was  decreed  to  specitically  perform  his  agreement  by  con- 
veying" the  land. 

(1)  Surcome  v.  Penniger,  3  De  G.  M.  &  G.  571  ;  Floyd  v.  Buckland,  1  Freem. 
208  ;  Ungley  v.  Ungley,  L.  R.  4  Ch.  D.  73  ;  Freeman  v.  Freeman,  43  N.  Y.  34; 
Williston  V.  \Villiston,'41  Barb.  635  ;  Lobdell  v.  Lobdell,  36  N.  Y.  327 ;  France  v. 
France,  4  Ilalst.  Ch.  650  ;  Syler  v.  Eckhart,  1  Binney,  378  ;  McClure  v.  McClure, 
1  Barr.  374  ;  Burns  v.  Sutherland,  7  Bai-r.  103  ;  Kckei-t  v.  Mace,  3  Penn.  &  Watts, 
304,  n.  ;  Young- 1).  Glendcnning,  6  Watts,  509;  Mahon  v.  Baker,  2  Ca'^ev,  519; 
Atkinson  r.  Jackson,  8  lud.  30;  Saco  v.  Henry,  39  Ind.  414;  Briglit  v.  Bri'ght,  41 
111.  101 ;  Galln-aith  v.  Galbraith,  5  Kans.  402  ;  Neale  v.  Neale,  9'  Wall.  1  ;  King-a 
V.  Thompson,  9  Pet.  204  ;  Haines  v.  Haines,  4  Md.  Ch.  133 ;  6  Md.  435  ;  Runker 
11.  Abell,  8  B.  Mon.  500;  Kurtz  v.  Hibner,  55  111.  514;  Johnston  v.  Johnston,  19 
Iowa,  74 ;  [Young  v.  Young,  45  N.  J.  Eq.  27  ;  Frame  Vi  Frame,  32  W.  Va.  463; 
Burlingame  v.  Rowland,  77  Cal.  315;  Manly  t.  Howlett,  55  Cal.  94;  Whitsitt  ?;. 
Trustees  Presbyterian  Church,  110  III.  125  (donation  of  land  for  jtin-pose  of 
erecting  a  church) ;  Irwin  r.  Dyke,  114  HI.  302;  Wylio  v.  Charlton,  (Xebr.)  62 
N.  W.  Rep.  220  (Eeb.  0,  1895)  ;  Seayey  v.  Drake,  02  N.  II.  393 ;  Erwin  v.  Erwin, 
17  N.  Y.  Supp.  442 ;  Smith  v.  Smith,  51  Hun,  164;  Young  v.  Overbaugh,  70  Hun, 
151 ;  Allison  v.  Burns.  107  Pa.  St.  50,  53;  Erie,  etc.,  R.  Co.  v.  Knowles,  117  Pa. 
St.  77;  Huffman  v.  Huffman,  (Pa.)  12  Atl.  Rep.  308  ;  McCormick  v.  Hammer.sley, 
1  App.  D.  C.  313  ;  Halsey  v.  Peters'  Exec.  79  Va.  60  ;  Hunter  v-  Mills.  29  S  C. 
72,  79  ;  Baker's  Exrs.  v.  De  Freese,  (Tex.)  21  S.  W.  963  ;  Wells  v.  Davis,  77 
Tex.  636 ;  Truman  ?).  Truman.  79  Iowa,  506  ;  Weat  v.  Bundy,  78  Mo.  407,  409  ; 
Dougherty  v.  Har.'^el,  91  Mo.  101,  107;  Anderson  v.  Scott.  94  Mo.  643  ;  Newkirk 
V.  Marshall,  35  Kan.  77,  82,  84  ;  Dawson  v.  McFaddin,  22  Nebr.  131, 137 ;  Ford  v. 
Steele,  (Neb.)  48  N.  W.  Rep.  271  ;  Story  v.  Bhir.k,  5  Mont.  26,  47;  Bolianan -w. 
Bohanan,  96  111.  591  ;  Austin  v.  Davis,  (Ind.)  26  N.  E.  Rep.  890  ] 

(2)  Repudiated  in  Ridley  v.  McNairy,  2  Humjjh.  174  ;  Evans  v.  Battle,  19  Ala. 
398  ;  Forward  v.  Armstead,  12  Ala.  124  ;  Pinckard  v.  Pinckard,  23  Ala.  649  ; 
Boze  V.  Davis,  14  Tex.  331  ;  questioned  in  Moore  v.  Small,  7  Hai-ris,  461,  409; 
Thorne  7-.  Thome,  18  Ind.  402.  The  courts,  in  these  decisions,  seem  to  have 
wholly  misapi^reh ended  the  g-roimd  ujion  which  the  e<]uitable  doctrine  of  part 
performance  rests.  The  enforcement  of  a  pai't-performed  contract  is  never  based 
upon  the  contract  itself,  for  that  is  wholly  covered  by  the  statute  of  frauds  ;  it  is 
based  upon  acts  of  the  parties  outside  of  their  bargaining,  acts  which  render  the 
defendant's  refusal  to  go  on  a  clear  fraud  upon  the  plaintifl".  Now,  it  is  evident 
that  exactly  the  same  i-easons  exist,  and  have  exactly  the  same  cogency,  in  the 
case  under  discussion,  of  a  parol  gift.  It.s  enforcement  is  never  based  u]ion  the 
donor's  promise ;  it  is  based  upon  acts  done  outside  of  and  in  addition  to  such 
promi.?e ;  upon  th(>  doniui's  taking  possession  and  m.aking  imju-ovements  on  the 
faith  and  in  execution  of  the  gift,  and  thereby  altering  his  own  jio.sition.  so  that 
a  restoration  to  his  former  situation  would  be  impo.ssil)le,  and  a  i-efusal  to  perfect 
the  donation  1)y  conveying  the  title  and  the  consequent  loss  of  his  outkl^•s,  would 
be  an  act  of  glai-ing  injustice  and  virtual  fraud  against  the  donee.  The  same 
equitable  considerations  which  lead  to  the  enforcement  of  a  verbal  agreement, 
must  apply  with  like  force  to  the  enforcement  of  a  parol  gift,  if  a  consideration 
has  been  suijplied  by  the  donee. 

191 


186  SPECIFIC  PERFORMANCE    OF    CONTRACTS. 

and  profits  already  received  from  the  land.(l)  The  gift  must  be 
established  by  certain  and  unmistakable  evidence,  and  the  fact  that 
the  im[)rovements  were  made  in  consequence  of  and  in  reliance  upon 
it,  mast  als  J  be  directly  and  unequivocally  proved  ;  proof  merely  that 
the  donee  has  received  possession  of  the  land,  and  has  made  improve- 
ments upon  it,  will  raise  no  presumption  of  his  purpose  and  intent, 
nor  furnish  a  sulficient  ground  for  the  specific  equitable  relief.(2)  If 
the  donee,  through  lack  of  certain  evidence,  fails  to  establish  the  gift 
and  to  obtain  its  enforcement,  he  may,  nevertheless,  be  reimbursed  or 
compensated  for  the  money  and  labor  expended  in  reliance  upon  the 
donor's  promise. (3) 

^EC.  132.  In  certain  states  the  foregoing  rule,  as  to  parol  gifts,  has 
even  been  extended  to  parol  licenses.  In  those  states,  therefore,  a 
parol  license  to  enter  upon  and  occupy  land  of  the  licenser,  and  to  do 
acts  thereon,  such  as  constructing  a  way  or  water-course,  or  building 
a  permanent  structure  even,  if  partly  executed  by  the  licensee,  so  that 
injury,  which  is  technically  called  irreparable,  would  be  caused  by 
its  revocation,  will  be  specifically  enforced.  The  nature  of  the  relief 
will,  of  course,  depend  upon  the  nature  of  the  license  and  the  acts 
done  under  it  by  way  of  part  performance.  In  general,  the  actual 
remedy  is  an  injunction  to  prevent  a  revocation,  and  restrain  the 
licenser  from  interfering  with  the  occupation  and  works  of  the 
licensee. (4)  This  rule  is  undoubtedly  opposed  to  the  common-law 
doctrine  concerning  licenses  as  it  prevails  in  England,  and  in  most 
of  the  American  states. 

k  EC.  133.  7.  Although  marriage,  as  has  already  been  shown,  is 
not  alone  a  part  performance  of  contracts  made  in  consideration  of 
it,  yet  aTi  agreement  made  in  consideration  of  marriage,  or  in  antici- 
pation of  marriage,  or  a  parol  gift  to  one  or  both  of  the  intended 

(1)  Wack  V.  Sorber,  2  Whai-t.  387  ;  Neale  v.  Neale,  9  Wall.  1  ;  Young  v.  Glen- 
denning,  6  Watts,  509,  per  Gmsox,  C.  J.  :  "Slight  and  temijorary  erections  for 
the  tenant's  own  convenience,  give  no  equity ;  but  an  indefeasible  right  may 
grow  oat  of  permanent  improvements."  [Mayer's  Appeal,  105  Pa.  St.  432; 
Wooldridge  v.  Hancock,  (Tex.)  6  S.  W.  Rep.  818.  See  also,  to  the  effect  that 
expenditure  on  the  land  is  necessary,  Beall  v.  Clark,  71  Ga.  818,  852 ;  Hughes 
•y.  Hughes,  72  Ga.  178  ;  Grizzle  v.  Gaddis,  75  Ga.  350 ;  Galloway  v.  Garland,  104 
111.  275 ;  Anderson  v.  Scott,  94  Mo.  637,  G44.]  The  expenditures  must  be  sho-\\Ti 
to  have  l)een  made  on  the  faith  of  a  prior  donation.  Eckert  v.  Eckert,  3  Penn. 
332  ;  W^est  v  Flannagan,  4  Md.  36.  [The  fact  that  the  rental  value  of  the  land 
exceeds  the  amount  expended  by  the  donee  held  not  to  prevent  specific  per- 
formance in  Young  v.  Overbaugh,  (N".  Y.)  39  N.  E.  Rep.  (Feb.  26,  1895).  lu 
Tunison  v  Bradford,  49  N.  J.  Eq.  210,  215,  it  is  held,  that,  as  the  improvements 
must  be  on  the  faith  of  the  donation,  subsequent  expenditures  by  grantees  of- 
the  donee  cannot  be  invoked  for  the  api^lication  of  the  principle.] 

(2)  Hugus  V.  Walker,  2  Jones,  173;  [Ogsbury  d.  Ogsbury,  115  N.  Y.  290; 
Anderson  v.  Scott,  94  Mo.  637  (improvements  must  be  made  on  faith  of  the 
donation) ;  Griggsby  v.  Osborn,  82  Va.  371  (evidence  insufficient).] 

(3)  King  V.  Thompson,  9  Peters,  204 ;  Evans  v.  Battle,  19  Ala.  398 ;  Boze  v, 
Davis,  14  Tex.  331. 

(4)  The  proposition  stated  in  the  text  is  most  strongly  maintained  by  decisions 
of  the  Pennsylvania  courts.  Rerick  v.  Kern,  14  Serg.  &  R.  267  ;  Swartz  v. 
Swartz,  4  BarV.  353  ;  McKellip  v.  Mcllhenny,  4  Watts,  317  ;  Pope  v.  Henry,  24 
Vt.  560;  Sheffield  v-  Collier,  3  Kelly,  82;  Wynn  v.  Garland,  19  Ark.  23;  2  Am. 
Lead.  Cas.  570  (5th  ed.) ;  [Flickinger  v.  Shaw,  87  Cal.  126  (right  of  way)  ;  Bal- 
dock  V.  Atwood,  (Oreg.)  26  Pac  Rep.  1053  (same)  ;  Robinson  i\  Thrailkill,  110 
Ind.  117  (same)  ;  Olmstead  v.  Abbott,  61  Vt.  281  (license  to  flow  lan<ls) ;  Morton 
Brewing  Co.  v.  Morton,  47  N.  J.  Eq.  158  (license  to  maintain  a  drain  across  land 
of  licenser).] 

192 


PART   PEHFOKMANCE.  1S7 

spouses  where  the  donor  receives  no  pecuniary  consideration,  will  be 
specifically  enforced,  if  there  are  other  independent  acts  of  part 
perfornia:i<-e  in  connection  with  the  wotUock  ;  ;iimI  tht;  courts  aro,  pi  r- 
haps,  not;  iuclinod,  iu  suili  cases,  t)  scrutiidze  those  ancillary  acts  wi;h 
severity,  or  to  require  that  they  should  be  in  theuis(»lve.s  of  nuich 
importance.(l)     Possession  of  the  land  \^  a  suflicient  act  in  case  of  an 

(1)  Hammersley  v.  DeBiel,  12  CI.  &  Fin,  (U,  n.  ;  Snrcoine  v  Pennif,'<'r,  :5  Do  (i.  M. 
&  G.  571 ;  Taylor  v.  Beech,  I  Ves.  297  ;  Ungley  v.  Ungley,  L.  R.  4  Ch.  D.  73  ;  Noale 
V.  Neale,  9  Wall.  1 ;  Duval  v.  Getting,  3  Gill.  138 ;  Goug-li  v.  Crane,  3  Md.  Ch.  1 19  ; 
4  Md.  311 ;  [White  v.  Ingram,  (Mo.)  19  S.  W.  827].  In  Neale  v.  Neale,  9  Wall.  1, 
taking posses.si()n  and  making-  iiormanent  impi'ovements  by  the  husband  ami  wife, 
were  held  a  sufficient  part  performance  of  an  ante-nuptial  verlial  promi.^e  by  the 
father  of  the  hust)aud  to  convey  land  to  the  wile,  made  in  consideration  of  the  in- 
tended marriag-e.  In  Surcome  ■?>.  Penniger,  supra,  a  father,  before  the  mai-riage  of 
his  daughter,  tokl  her  intended  husband  that  he  should  give  them  certain  lejusehold 
propei-ty  on  their  marriage.  After  the  marriage,  he  put  the  husl»and  in  jiossession, 
and  told  the  tenants  to  pay  their  rents  to  the  husband,  who  also  laid  out  some  money 
on  the  property.  This,  it  wll  be  seen,  was  a  ijarol  gift  in  anticipation  of  the  mar- 
riage ;  the  subsequent  acts  v/ere  held  by  the  lord  justices,  a  good  pai-t  perform- 
ance, per  L.  J.  TuKXER :  "In  this  case,  there  has  been  a  part  performance  by 
the  dehvery  up  of  possession  to  the  husband — a  fact  which  has  always  beep 
held  to  change  the  situation  and  rights  of  the  parties — and  there  has  been  a  con- 
siderable expenditure  by  him  on  the  property.  There  is,  therefore,  here,  what 
was  wanting  in  Lassence  v.  Tierney,  viz.  :  acts  of  i>art  perfornianc*^  besides  the 
marriage.  The  difficulty  in  these  cases  is,  that  the  statute  of  frauds  presents  an 
obstacle  to  suing  upon  the  agreement.  But  it  has  been  held  in  many  cases,  that 
if  there  be  a  written  agreement  after  marnage,  in  pursuance  of  a  parol  agree- 
ment before  the  marriage,  this  takes  the  case  out  of  the  statute  ;  so  does  also 
part  performance."  The  recent  case  of  Ungley  v.  Ungley,  supra,  is  still  more 
emphatic.  A  father,  in  contemplation  of  the  marriage  of  his  daug^htor,  verbally 
promised  to  give  her  a  certain  house  as  a  present,  and  at  once,  after  the  mar- 
riage, put  her  and  her  husband  in  possession.  The  father  was  the  owner  of  the 
premises,  which  were  leasehold,  subject  to  a  charge  in  favor  of  a  building 
society,  payable  in  installments.  He  paid  those  which  fell  due  in  his  life- time, 
and  at  his  death  there  was  a  balance  of  11 OZ,  which  fell  due  shortly  after  his 
death.  Held,  per  Malins,  V.  C,  that  the  verbal  promise  having  been  proved, 
the  possession  was  a  part  performance,  which  took  the  case  out  of  the  statute  of 
frauds ;  that  the  intent  of  the  donor  was  to  give  the  house  free  from  incum- 
brances, and  so  the  llOZ.  was  jiayable  out  of  the  personal  estate  of  the  deceased.  , 
This  could  hardly  be  called  a  contract  made  upon  consideration  of  marriage,  it 
was  rather  a  gift  in  anticipation  thereof;  and  yet  jiossession,  without  the  making 
of  improvements,  was  held  a  sufficient  part  perfoi-mance,  probably  because  the 
marriage  itself  was  to  be  regarded  as  a  strengthning  cii-cumstance.  In  Ilam- 
mei"sly  v.  De  Biel,  12  CI.  &  Fin.  64,  the  lady's  father  and  her  intended  husljand 
made  a  verbal  agreement  prior  to  the  marriage,  by  which  the  father  agreed  to 
settle  certain  property  on  his  daughter,  and  the  husband  agreed  to  settle  a  cer- 
tain jointure  upon  her.  The  intended  husband  executed  his  settlement  a.s  he  had 
promised,  and  the  mari-iage  took  place.  It  was  held  by  Lord  Ch.  Cottknham, 
that  this  execution  of  the  settlement  in  pursuance  of  his  contract  by  the  husband, 

193 


188  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

agreement;  possession  and  improvements  in  case  of  a  mere  parol 
promise  or  gift.  Under  some  very  special  circumstances,  cohabita- 
tion, even  between  a  husband  and  his  w^ife,  may  be  an  act  of  part 
performance  sufficient  to  take  a  contract,  in  which  they  are  both  ben- 
eficially interested,  out  of  the  st.tute  of  frauds. (1) 

(Sec.  134.  8.  The  foregoing,  especially  possession  and  improve- 
ments, either  alone  or  in  connection  with  each  other,  or  with  payment, 

being'  an  act  done  by  him  over  and  above  the  marriage,  was  a  sufficient  part 
pei-tbrmance  to  take  the  father's  verbal  agreement  out  of  the  statute,  and  it  was 
accortliugly  enforced.  On  appeal  to  the  House  of  Lords,  Lord  Campbell  and 
Lord  Lyndhurst  were  strongly  of  the  same  opinion  with  Lord  Cottenham,  but 
the  decision  below  was  actually  affii'med  upon  another  view  of  the  case.  Ham- 
mersley  v.  De  Biel,  12  CI.  &  Fin.  45.  In  the  more  recent  case  of  "Warden  v.  Jones, 
23  Beav.  487.  where  the  ante-nuptial  vei-bal  agreement  was  between  the  intended 
husband  and  wife  alone,  and  not  between  the  husband  and  another  person,  it  was 
held  by  Sir  John  Romilly,  M.  R.,  that  the  execution  of  a  settlement  by  one  of 
the  parties,  was  not  a  sufficient  part  performance  to  render  the  agreement  bind- 
ing as  against  the  other.  The  distinction  made  by  the  M.  R.  in  this  case  would, 
pi-obably,  not  be  accepted  and  followed  in  those  American  states  which  have  so 
largely  increased  the  wife's  capacity  to  contract  by  various  statutes,  provided 
the  doctrine  of  the  preceding  case  (Hammersley  v.  De  Biel)  was  approved  and 
adopted.  If  the  execution  of  a  written  insti-ument.  like  a  settlement  of  property, 
is  an  effectual  part  performance  of  a  verbal  ante-nuptial  agreement  between  one 
of  the  spouses  and  a  third  person,  there  can  be  no  reason,  by  the  modern  law 
respecting  married  women  which  i)revails  in  those  states,  why  the  same  i-esult 
should  not  follow  in  the  case  of  a  vei-bal  ante-nuptial  agreement  between  the  two 
intended  spouses.  In  Duval  v.  Getting,  supra,  a  father,  in  contemplation  of  her 
marriage,  made  a  verbal  gift  of  land  to  his  daughter ;  the  marriage  and  subse- 
quent possession  by  the  daughter  and  her  husband,  wei-e  held  to  constitute  a  part 
performance.  In  Gough  v.  Crane,  supra,  a  verbal  ante-nuptial  agi-eement  was 
made  by  a  woman  and  her  intended  husband,  to  the  effect  that  he  should  be 
entitled  absolutely  to  all  her  things  in  action,  in  consideration  of  a  yearly  allow- 
ance to  be  paid  by  him  to  her  for  pin  money.  At  the  marriage,  the  wife's  bonds 
were  delivered  to  the  husband,  and  he  afterwards  jiaid  her  the  pin  money  as 
agi-eed.  After  her  death,  this  agreement  was  enforced  against  her  representa- 
tives, the  Maryland  court  of  appeals  holding  that  the  delivery  of  possession  was  a 
good  part  performance.  This  decision  has  been  criticised  on  the  ground  that,  as 
the  husband  was  entitled  by  law  to  the  pos-session  of  his  wife's  choses  in  action, 
the  fact  of  his  possession  did  not  indicate  any  conti-act,  and  thei'efore  lacked  the 
first  essential  element  of.  a  part  perfoi-mance.  Passing  by  this  criticism,  the 
decision  is  clearly  opposed  to  the  distinction  taken  by  the  M.  R.  in  Warden  v. 
Jones,  sujyi-a.     [-^ee  Peek  ■?).  Peek,  ante,  §  121,  n.] 

(1)  Webster  v.  Webster,  27  L.  J  Ch.  115 ;  S.  C.  on  app.,  4  De  G.  M.  &  G.  437. 
A  husband  and  wife  having  separated  and  executed  a  deed  of  separation,  he 
covenanted  therein  with  her  trustee  to  Y^ay  h<jr  a  certain  annuity  dui-ing  the 
separation.  Shortly  befoi-o  his  death,  he  vei  bally  jiromised  to  her  and  her  trus- 
tee, that  if  she  would  return  and  live  with  him,  he  would  continue  to  jiay  her 
the  annuity  for  her  life,  and  would  charge  it  upon  his  real  estate,  t^he,  therefore, 
retuT-ned  and  cohabited  with  him  until  his  death,  but  he  did  not  fulfdl  his  pai-t  of 
the  agreement.  After  his  death  the  agreement  was  enforced  against  the  hus- 
band's devisees,  the  court  holding  the  act  to  be  a  part  performance.     It  will  be 

194 


PART   PKlihORMAyCK.  189 

or  with  marriage,  are  by  far  the  most  common  species  of  j)art  per- 
formance with  which  the  courts  are  called  upon  to  deal.  It  will  be 
noticed  that  they  operate  directly  upon  the  land  or  other  subject- 
matter  of  the  contract,  and  involve  some  physical  acts  on  the  i)art  of 
"the  plaintiff  affecting  its  very  corpus.  I  shall,  in  the  present  subdi- 
vision, collect  all  the  remaining  miscellaneous  instances  of  part 
performance  which  do  not  admit  of  a  more  specific  classification,  and 
many  of  which  are  entirely  independent  of  the  subject-matter  of  the 
contract.  1.  A  verbal  agreement  to  exchange  land,  when  followed 
by  possession,  is  thereby  part  performed  and  will  be  enforced  ;(1)  and 
the  possesion  by  one  of  the  parties  will  take  the  agreement  out  of  the 
statute  as  to  the  other,  who  has  not  entered  into  the  possession  of  his 
tract. (2)  It  has  even  been  lield  that  the  execution  of  a  conveyance 
by  one  party,  in  pursuance  of  a  verbal  contract  to  exchange  lands,  is 
•of  itself  a  sufficient  part  performance  upon  which  to  enforce  the  agree- 
jaent  against  the  other  party.(3)  When  two  claimants  of  the  same 
land  verbally  agree  to  compromise  the  controversy  by  dividing  it 
between  them,  and  the  division  is  made,  and  each  takes  possession  of 
his  allotted  portion,  the  bargain  will  be  enforced  at  the  suit  of 
either.(4)  The  same  rule  is  recognized  and  followed  in  the  doctrine 
as  to  parol  partitions  and  adjustments  of  boundaries  heretofore 
stated.  (5) 

Sec.  1o5.  2.  Under  very  special  circumstances,  "work,  labor  and 
services  done  or  procured  to  be  done  by  a  vendee  for  the  benefit  of 
a  vendor,  if  they  cannot  be  adequately  compensated  by  an  award  of 
damages,  and  if  the  plaintiff"  cannot  be  restored  to  liis  original  posi- 

noticed  here,  that  the  part  peformance  was  something-  which  did  not  directly 
act  upon  or  affect  the  land  itself. 

(1)  Reynolds  v  Hewett,  3  Casey,  176 ;  Johnston  v.  Johnston,  6  Watts,  370 ; 
Miles  V-  Miles.  8  Watts  &  Ser^.  130 ;  Parrill  v.  McKinley,  9  Grat.  1  ;  Beebe  v. 
Dowd,  22  Barb.  255  ;  Stockley  v.  Stockley,  1  V.  &  B.  23  ;  Neale  v.  Nealp,  1 
Keen,  672;  [Union  Pacific  R.  Co.  v.  Me  Alpine,  129  U.  S.  305  ;  Boridf  v.  Hudson, 
(lnd.)37N  E  Rep.  786  ;  Dakin  t)  Dakin,  97  Mich.  284;  Brennan  v  Brennan, 
21  N.  y.  Supp.  195] ;  Baker  v  Scott,  2  T.  &  C.  606.  Verbal  ag-i-eement  V)etween 
A  &  B.  to  exchange  lands,  A.  conveyed  to  B.,  who  took  possession.  Held.  A. 
was  thei-efore  entitled  to  a  specific  performance  against  B  [To  the  same  effect, 
Bigelow  V.  Amies,  108  U.  S.  10  ;  McClure  v.  Oti'ich,  118  111.  320  1 

(2)  Lee  v.  Lee,  9  Barr,  169  ;  Dock  v.  Hart,  7  W.atts  &  S.  172 ;  Reynolds  v. 
Hewett,  3  Casey,  176  ;  Jones  v.  Pease,  21  Wise.  644. 

(3)  Caldwell  v  Cari-ingion,  9  Pet.  86.  It  is  clear  that  such  an  act  fully  meet^ 
all  the  rcciuii-einents  of  the  docti  inc.  |  See  also,  Riggles  -?'.  Enery,  154  U.  S.  244  ; 
Gould  t)  Elgin  City  Bkg.  Co.  (Ill  )  26  N.  E.  497.  That  there  nuisf,  however,  be 
a  sufficient  delivery  of  the  conveyance  to  the  other  party,  or  his  agent  authorized 
to  receive  it,  see  Swain  v.  Burnette,  (Cal.)  26  Pac.  Rep.  'l093,  June  23,  1891.  De- 
livery of  the  deed  is  sufficient  to  entitle  the  plaintiff  to  the  execution  of  a  mort- 
gage which  was  the  consideration  of  iiis  parol  agi-eement  to  convey  ;  Dean  {). 
Anderson,  34  N.  J.  Eq.  496  ;  especially  where  the  vendee  h;i3  been  put  in  posses- 
sion under  the  deed,  Roberge  v.  Winn,  (N.  Y.)  39  N.  E.  Rep.  631  (Vbh  8,  1895). 
f>ee,  also,  Sprague  v.  Cochrane,  144  N.  Y.  104 ;  Murjihy  v.  Whitney,  69  Hun,  573  ; 
McClure  v  Otrich,  118  111.  320]- 

(4)  Weed  v.  Terry,  2  Doug.  (Mich.)  344.  See  Stai)ilton  tj.  Stapilton  and  notes, 
Xicad.  Cases  in  E(p  v.  2. 

(5)  See  ante,  §  121. 

195 


190  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

tioii,  will  constitute  part  j)erformance  of  an  agreement  to  convey  land 
in  consideration  of  such  services.  (1)  o.  (Sometimes  acts  done  to  or  by  a 
third  person,  not  a  party  to  the  suit,  may  be  a  part  performance  ;  but 
they  must,  of  course,  be  contemplated  by  the  agreement,  and  done 
in  pursuance  of  it ;  and,  it  would  seem,  must  materially  affect  both 
the  plaintiff  and  the  defendant.  Examples  of  this  kind  are  given  in 
the  foot-note.(2)     Acts  of  ownership,  done  on  or  towards  the  land  by 

(1)  Rhodes  v.  Rhodes,  3  Sandf.  Ch.  279  ;  see  aide,  §  114.  This  case  is  doubtless 
unusual,  but  1  think  the  decision  clearly  conforms  with  the  essential  principles, 
upon  which  the  doctrine  of  part  performance  rests.  The  criticisms  upon  it  exhibit 
the  too  common  inability  or  unwillingness  to  understand  and  appreciate  the  elfect, 
of  a  geiieral  pi'inciple,  and  its  application  to  an  assemblage  of  facts  ditferent  from 
those  to  which  it  is  ordinarily  a])iilied.  For  a  case,  where  in  a  contract  some- 
what similar  to  the  foregoing,  the  part  performance  was  held  insufficient,  see 
Cronk  ?).  Trumble,  G6  111.  428.  [In  this  case,  the  acts  on  the  part  of  the  plaintiff, 
which  were  the  consideration  of  the  agreement,  had  not  been  fully  performed 
when  the  suit  was  brought.  Relief  was  denied  for  the  same  reason  in  Jaffee  v. 
Jacobson,  43  Fed.  Rep.  21.  Whei-e  the  defendant,  during  his  lifetime,  repudiated 
the  contract,  his  attempt  to  convey  the  same  to  another  person  was  enjoined, 
although  the  contract  had  not  been  fully  performed  by  the  plaintiflf,  v/hose  serv- 
ices were  to  last  during  the  defendant's  lifetime ;  Pflugar  v.  Pultz,  43  N.  J.  Eq. 
440.]  In  Twiss  v.  George,  33  Mich.  2.53,  a  step-son,  on  his  coming  of  age,  was 
about  to  leave'  home  and  act  for  himself.  His  step-father  thereupon  agreed, 
verl)ally,  that  if  he  would  remain  at  home  and  work  the  farm,  and  take  care  of 
the  family,  he  should  have  a  deed  of  one-half  of  the  farm.  The  e\-idence  showed 
this  to  have  been  a  distinct  and  -plajm  agreement,  and  not  a  mere  vague  expecta- 
tion. The  step-son  substantially  performed  on  his  j)art,  and  it  was  held  that  he- 
v/as  entitled  to  a  specitic  execution  of  the  contract.  [In  Welch  v.  Whelpley,  (J2 
Mich.  If),  A.  contracted  to  give  a  tract  of  land  to  his  son-in-law  and  daughter,  in 
consideration  of  their  "making  it  their  home."  It  was  held  that  they  substan- 
tially comiilied  with  the  contract  by  taking  up  their  residence  upon  the  land ;. 
that  a  residence  for  life  or  for  any  fixed  iieriod  was  not  contemplated.  See,  also, 
Vreeland  v.  Vreeland  (N.  J.  E(|.),  31  Atl.  Rep.  3  (May  21.  1895). 

(2)  In  Johnson  v.  Hul)bell,  2  Stockt.  Ch.  332,  a  father  made  an  oral  promise  to 
a  son,  in  jaresence  of  his  daughter,  to  devise  certain  lane  to  the  son  in  considera- 
tion of  the  latter's  conveying,  at  once,  certain  other  land  of  his  own  to  the  daugh- 
ter. The  son  thereupon  executed  the  conveyance  to  his  sister,  and  this  was  held 
to  be  a  part  performance  of  the  father's  verbal  agreement  to  devise.  In  Lee  v. 
Lee,  9  Ban*.  1G9,  a  father  and  son  agreed  that  the  father  should  purchase  foi"^ 
himself  a  certain  piece  of  land  wth  money  of  the  son's,  and  that  the  son  should, 
in  return,  take  for  himself  a  second  tract  belonging  to  the  father.  The  father 
thereupon  bought  and  took  possession  of  the  first  parcel,  and  the  second  was 
assessed  in  the  son's  name,  although  he  did  not  take  possession  of  it.  The  act  of 
the  father  in  buying  and  taking  possession  of  the  first  parcel,  with  the  assessment 
of  the  second  to  the  son  (which  fact,  however,  of  itself,  could  have  had  little  or 
no  elfect),  was  held  to  be  a  part  performance,  and  took  the  father's  verbal  agree- 
ment to  convey  the  second  parcel  out  of  the  statute.  In  this  case,  it  is  true,  no 
act  was  done  to  or  by  a  third  person  ;  'but  at  the  same  time  the  act  constituting 
the  part  jjerformance  had  no  direct  connection  with  the  land  which  was  the  sub- 
ject-matter of  the  contract  sought  to  be  enforced.  In  Crocker  v.  Higgins,  7 
Conn.  343,  an  rgreement  was  made  between  A.,  B  and  C,  whereby  it  was  stip- 
ulated that  if  A.  would  convey  certain  laml  to  B.,  he  (B.)  would  lease  the  same 
to  C.  A.  conveyed  to  B.,  and  this  was  held  a  part  performance  upon  which  B  's 
undertaking  to  lease  could  be  enforced  on  behalf  of  C  In  Parker  v.  Smith,  1 
Cell.  C.  C.  608,  the  owner  of  a  colliery  had  leased  to  four  partners  for  a 
term  of  years,  which  had  yet  several  yeai-s  to  run.  He  made  a  verbal 
agreement  with  the  lessees,  in  substance,  that  the  firm  should  dissolve ; 
that  two  of  them  should  retire  and  give  up  all  interest  in  the  busines?, 
which  should  be  thereafter  conducted  by  the  other  two,  they  assuming 
all  the  existing  liabilities,  and  he  would  thereupon  give  these  two  partners 
a  new  lease  at  a  diminished  rent.  The  firm  was  therefore  dissolved,  by 
the  two  specified  members  retiring ;  the  other  two  assumed  all  the  liabilities,  and 

19S 


PART   I'KRFomrAXCK.  191 

ur  on  behalf  of  the  vendee,  do  not  always  per  se  amount  to  a  part  por- 
formance.  Thus,  if  a  purchaser  under  a  verbal  contract  docs  not  take 
possession,  nor  make  the  re(iui>itc  kind  of  iiniirovcmcnts,  the  assess- 
ment of  the  land  to  him  and  his  paying  taxes  on  it,  will  not  be  suffi- 

released  the  out-going  mcmbei-s  tlR'ia;tVoin,  iiiul  (;:irried  on  the  business  l)y  tiieni- 
selves.  These  acts  l^etweeu  the  two  who  went  out  and  the  two  who  continue<l, 
■whereby  the  firm  was  dissolved,  and  the  liabilities  of  the  latter  wore  increiised, 
were  held  to  constitute  a  part  pei-formance,  and  the  verbal  agreement  to  give  a  new 
lease  was  enforced.  The  decision  has  often  been  cited  with  appi-oval.  On  the 
other  hand,  when  the  vendee,  in  a  verbal  contract  for  the  purchase  of  land,  has 
stipulated  as  a  part  of  the  agreement  to  lease  the  pi-emises  to  a  thii-d  person,  his 
executing  the  lease  is  held  not  to  be  a  part  performance.  Whitchurch  v.  Bevis,  2 
Bro.  C.  C.  559.  And  where  the  vendor  verbally  agreed  to  convey,  upon  the 
vendee's  procuring  a  release  from  a  third  party,  and  the  vendee  procured  the 
release  by  paying  a  large  sum  for  it,  this  act  was  held  not  to  be  a  part  ])erform- 
ance.  O'Reilly  v.  Thompson,  2  Cox,  271.  This  case  was  explained  by  V.  C. 
Knight  Bruce,  in  Parker  v.  Smith,  supra,  and  distinguished  on  two  grounds : 
First,  the  procuring  the  release  was  not  done  in  execution  of  the  agreement,  but 
preparatory  to  and  in  anticipation  of  its  performance  ;  and  secondly,  it  was  not 
between  the  parties  to  the  agreement.  The  same  observation  applies  to  Whit- 
church V.  Bevis.  Again,  a  contract  between  A.  and  B.,  that  if  B.  would  convey 
to  C,  A.  will  convey  to  B.  ;  B.  executes  the  conveyance  to  C.  ;  this  has  been  held 
not  to  be  a  part  performance,  so  as  to  entitle  B.  to  a  decree  against  A.  Chainbei-s 
V.  Lecompte,  9  Mo  566.  It  may  seem  difficult  to  reconcile  all  these  cases.  I  thiidv. 
however,  that  the  following  rule  may  fairly  be  deduced  from  them,  and  that  it 
remo\'es  any  appai-ent  conflict,  although  it  is  impossible  to  say  that  it  has  been 
explicitly  laid  down  by  the  court  in  each  case.  If  the  act  done  to  oi*  by  the 
third  person  is  one  in  which  either  one  of  the  parties  to  the  suit  has  no  interest — 
in  other  words,  if  it  is  one  by  which  either  one  of  these  parties  will  not  be  materi- 
ally affected,  then  it  will  not  constitute  a  part  performance  of  their  agi-cf-ment, 
although  one  of  them  is  interested  in  it.  Thus,  in  the  case  last  cited,  A.  had  no 
interest  in  the  transfer  of  B.'s  land  to  C  ;  in  Whitchurch  v.  Bevis,  the  vendor  had 
no  interest  in  the  lease  made  by  the  vendee  to  a  third  person ;  and  in  O'Reilly  i\ 
Thompson,  it  would  seem  the  vendor  had  no  interest  in  the  release  procured  by 
the  vendee,  although  in  all  these  three  cases  the  vendee  himself  had  a  very  material 
interest  in  the  act  done  by  himself,  or  which  he  pi-ocui-ed  to  be  done  by  the  third 
person.  If,  on  the  other  hand,  the  act  is  contemplated  by  the  agreement,  done 
in  pursuance  of  it,  and  is  one  in  which  both  parties  to  the  suit  have  an  intei-est,  it 
will  avail  as  apart  pei'formance  in  behalf  of  the  plaintiff  against  the  defendant. 
Thus,  in  Pai'ker  v.  Smith,  both  the  lessor  and  the  two  remaining  partners  who 
were  pai-ties  to  the  suit,  had  a  matei-ial  interest  in  the  dissolution  of  the  piii-tner- 
ship,  and  the  assumption  of  all  lialiilities  by  the  plaintiff.  In  Croker  i\  Higgins, 
which  slightly  resembles  Whitchurch  v.  Bevis,  there  is  the  essential  diffei-once, 
that  all  three  persons  were  parties  to  the  agreement,  although  only  two  of  them 
were  parties  to  the  suit ;  and  furthermore,  both  defendant  B.  (who  had  jiromised 
to  lease  the  land  to  C),  and  the  plaintiff  C.  were,  by  the  very  terms  of  their  tripar- 
tite agi-eement,  interested  in  the  conveyance  from  A.  to  B..  which  constituted  the 
part  performance.  In  Johnson  v.  ITubbell,  the  father  wns  interested  in  the  con- 
veyance by  his  son  to  his  daughter,  because  it  was  a  in^ans  of  jiroviding  for  her, 
s.nd  in  fact  took  the  place  of  a  devise  or  bequest ;  in  this  respect,  the  case  difFerc 

197 


192  SP E CIFI C  PERFO RMA  NCE  OF  CONTRA  CTS. 

cient;(l)  nor,  as  has  been  held  in  Pennsylvania,  will  the  cutting  of 
timber  over  it,  or  other  analogous  use,  even  when  it  is  uncultivated 
timber  laud,  which  is  not  ordinarily  possessed  in  any  other  raanner.(2) 
This  latter  decision  should,  perhaps,  be  referred  to  the  known  dislike 
of  the  Peinisylvania  courts  to  the  entire  theory  of  part  performance, 
and  it  can  hardly  be  taken  as  an  authority  on  the  doctrine  as  gener- 
ally maintained.  (3) 

The  nature  and  effect  of  the  evidence  by  w^hich  the  contract 
must  be  proved. 

Sec.  136.  Fourth.  In  order  that  a  court  of  equity  sliall  exercise 
its  power  to  decree  a  specific  execution,  where  there  has  been  a  part 
performance,  the  contract  itself  must  be  clear,  certain,  and  unambig- 
uous in  iis  terms,  and  must  either  be  admitted  by  the  pleadings,  or 
proved,  with  a  reasonable  degree  of  certainty,  to  the  satisfaction  of 
the  court.  If,  therefore,  upon  all  the  evidence. given  by  both  parties, 
the  court  is  left  in  doubt  as  to  the  entire  contract,  or  even  as  to  any 
of  its  material  terms,  it  will  not  grant  the  remedy,  although  a  partial 
performance  of  something  has  been  sufficiently  proved. (4)  It  has  . 
been  said,  in  some  American  decisions,  that  in  suits  upon  contracts 
for  the  purchase  or  sale  of  land,  the   location  and  boundaries  of  the 

from  Chambers  v.  Lecompte,  which  it  would  exactly  resemble  if  the  j^arties  had 
been  strang-ers.  The  principle  sug-g-ested  seems  to  reconcile  all  these  cases,  and 
also  seems  to  be  sound.  [Sling-ei-land  v  Slingerland,  39  Minn.  197  ;  Murphy  v. 
Stever,  47  Mich  .532  (impi-ovements  made  on  the  land  l)y  husband  of  vendee  held 
to  avail  in  her  favor  as  acts  of  i^art  perfoi-mance)  ;  Blalock  v.  Waggoner,  82  Ga. 
122  (possession  of  a  third  party  eiiuivalent  to  possession  by  the  vendee).] 

(1)  Christy  v  Barnhart,  14  Pa.  St.  260  [But  evidence  of  payment  of  taxes  by 
the  vendee  is  proper,  and  of  some  value,  as  tending-  to  prove  the  assertion  of 
ownership  in  connection  with  the  vendee's  alleged  possession  ;  Pawlak  d.  Gran- 
owski  (Minn.),  55  N.  W.  831  (June  30,  1893) ;  Fairfield  v.  Barbour,  51  Mich.  57  ; 
McClure  v.  Jones,  121  Pa.  St.  550  ] 

(2)  Gangwei-  v.  Fry,  17  Pa.  St.  491. 

(3)  Miller  v.  Ball,  04  N.  Y.  280  ;  Borritt  v.  Gomeseri-a,  Bunb.  94. 

(4)  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1 ;  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22 ; 
Symondson  v  Tweed,  Prec.  Ch.  324  ;  Foster  v.  Hale,  3  Ves.  712,  713  ;  Boardman 
■u.  Mostyn,  6  Ves.  467,  470  ;  Pilling  v.  Armitage,  12  Ves.  78  ;  Mortimer  v.  Orchard, 
2  Ves.  243 ;  Savage  v.  Cirroll,  1  Ball  &  B.  285,  551 ;  2  Ball  &  B.  451  ;  Toole  v. 
Medlicott,  1  Ball  &  B.  404 ;  Reynolds  v.  Waring,  You.  343  :  Reese  v.  Reese,  41 
Md.  554  ;  Townsend  v.  Hawkins,  45  Mo  288 ;  Twiss  v.  George,  33  Mich.  253  ; 
Ackerraan  v.  Ackerman,  24  N  J.  Eci.  315  ;  Semmes  v.  Worthington,  38  Md.  298  ; 
Long  V.  Duncan,  10  Kans.  294  ;  Hardesty  v.  Richai-dson,  44  Md.  617  ;  Lester  v. 
Kinne,  37  Conn.  9  ;  Huff  v.  Shepard,  58  Mo.  242  ;  Allen  v.  Webb,  04  111.  342  ; 
Wright  V.  Wright,  31  Mich.  380;  Blanchard  v.  Detroit,  etc.,  R.  R  ,  31  Mich.  44  ; 
Newton  v.  Swazey,  8  N  H.  9,  13  ;  Tilton  v.  Tilton,  9  N.  H.  380,  391  ;  Pnrkhurst 
V.  Van  Ccjrtlandt,  1  Johns.  Ch.  273,  284  ;  14  Johns.  15  ;  Phillips  v.  Thompson,  1 
John.s.  Ch.  131  ;  German  v.  Machin,  6  Paige,  288,  292 ;  Lobdell  v.  Lobdell,  36 
N.  Y.  327  ;  Wallace  v.  Brown,  2  Stockt.  Ch.  308,  311 ;  Eyre  v.  Eyre,  4  Green  Ch. 
102  ;  Petrick  v.  Ashcroft,  4  ib.  339  ;  Force  v.  Dutcher,  3  Green.  Ch.  491  ;  Brewer 
V.  Wilson,  2  C.  E.  Green,  180  ;  Brown  v.  Finney,  3  P.  F.  Smith,  373 ;  Sage  V. 
McGuii-e,  4  Watts  &  S.  228,  229  ;  Chai-nley  v.  Hansbuiy,  1  Harris,  10,  21 ;  Moore 
V.  Small,  7  Harris,  401,  470  ;  Rankin  o.  Simpson,  7  Harris,  471  ;  McCue  V.  Johns- 
ton, 1  Casey,  300  ;  Cox  u  Cox.  2  Casev,  375  ;  Frye  v.  Shepler,  7  Barr.  91 ;  Green- 
lee v.  Greenlee,  22  Pa.  St.  225 ;  Burns  x\  Sutherland,  7  Barr.  103 ;  Hugus  v. 
Walker,  2  Jones,  173  ;  She]ihei-d  v  Bevin,  9  Gill.  32  ;  Owings  v.  Baldwin,  1  Md. 
Ch.  120  ;  Shepherd  v.  Shepherd,  1  Md.  Ch.  244 ;  Beard  v.  Linthicum,  1  Md.  Ch. 
345 ;  Chesapeake  and  Ohio  Canal  Co.  v.  Young,  3  Md.  480  ;  Wingate  v.  Dail,  2 

198 


PART  l'Ki:i-y)l!MA.\<E.  193 

land  in  question  must  be  clearly  deliued  in  the  contract  and  estab- 
lished by  the  evidence;  and  thou«;h  tlie  parties  have  ag-ree<l  as  to  all 
other  terms,  if  they  have  not  as  to  these  particulars,  there  is  no  con- 
tract which  can  be  enforced. (1)  Tlie  mode  of  describing  i)arcels  of  laud 
is  so  different  in  English  conveyances  from  that  ordinarily  employed 
in  this  country,  that  the  English  decisions  upon  this  particular  point 
can  have  little  application  in  the  United  .States,  It  may  safely  be 
said,  however,  that  the  rule  which  geno'rally  pnn-ails,  only  reipiires 
that  the  land  intended  to  bo  alFected  by  the  contract  should  1)0  so 
described,  that  it  may  be  uinnistakably  identilied  by  tlie  evidence. 
Certainly  no  more  certain  or  detailed  descri[»tion  can  be  reipiired  in  a 
contract  for  the  sale  of  land  than  in  a  deed  by  which  it  is  conveyed 

SiiC.  137.  It  is  not  necessary  that  the  contract  bhould  be  i)roved  with 
that  degree  of  moral  certainty  what  is  technically  termed  "  beyond 
a  reasonable  doubt;  "  and  mere  conflict  of  evidence  is  not,  of  itself,  a 
ground  for  refusing  to  grant  the  remedy.     It  is  sufiicient  if  the  sub- 

Harr.  &  J.  70  ;  StodJert  v.  Tuck,  5  Md.  18  ;  Carlisle  v  Fleming-,  1  Harring-.  421, 
431 ;  Townsend  v.  Houston,  1  llari-ing-.  532,  .545  ;  Anthony  ?;.  Leftwich.  '-i  Ran- 
dol;)h,  233,  2-lJ  ;  Rowton  v.  Rowton,  1  Hen.  &  Munf.  91  ;  Church  of  the  Advents. 
Farrow,  7  Rich.  E  j.  373  ;  Thompson  v.  Scott,  1  McCord  Ch  32,  3S,  30  ;  Massey 
V.  Mclhvain,  2  Hill  Ch.  421,  42G ;  Hatcher  v  Hatcher,  1  M.;Mu)len  Eq  311.  315. 
Miller  V.  Cotten,  5  Goo.  341,  351  ;  Pi-intup  ?\  Mitchell.  17  (reo.  5.5S  ;  Goodwin  r. 
Lyon,  4  Port.  (Ala.)  297;  Kay  v.  Curd.  6  B.  Mon.  100;  Shii-ley  v.  Kp(m<rer,  4 
Gilman,  (III.)  533-GOl  ;  Miutui-n  i\  Uavlis,  33  Cal.  129;  Colson  v  Thompson,  2 
Wheat.  333,  341  ;  Purcell  o.  Miner,  4  Wall.  513;  McNeill  o-  Jones,  21  Ark.  277; 
Shropshi;-e  ■?).  B'.-own,  45  Geo.  175 ;  [Marr  v.  Shaw,  51  Fed-  Rep.  800  ;  Crou-e  ■?'. 
Frothin-ham,  97  N.  Y.  100  ;  Galla<jher  n  Gallagher,  31  W.  Va.  9,  12,  13  ;  Drag-oo 
V.  Dras^oo,  50  Mich.  573;  Green  v.  Begole,  70  Mich  002;  Bi-own  v.  Brown,  4  7 
Mich.  373  ;  Ridgway  v.  Ridg-way,  09  Md.  242 ;  Fox  v.  Pierce.  50  Mich.  500 ; 
Hopkins  v.  Roberts,  54  Md.  312  ;  Larison  y.  Polhemus,  3()  N,  J.  Eii.  50i'>  (evidence 
insufhcient  to  e:-.tabli^hau  alleged  parol  g'ift  of  lands) ;  Shovers  /•.  Warwick,  (111.) 
38  N.  E.  Rep.  792  (Oct.  29,  1894) ;  Rutan  u.  Crawford,  45  N.  J.  E(|.  99  ;  Eckel  v. 
Bostwick,  (Wis  )  00  N.  W.  784  (Oct.  23,  1894)  ;  Brown  v.  Brown.  39  Hun,  498  ; 
Gall  ?\  Gall,  19  N.  Y.  Supp.  332  (contract  to  make  a  will) ;  Campbell  v.  Fetter- 
man,  20  W.  Va.  338  ;  Blankenship  v.  Spencer,  (W.  Va  )  7  S.  E  Rep  433;  Pike 
V.  Pettus,  71  Ala.  93  ;  Allan  v.  Young-.  88  Ala.  338  ;  Sutton  v.  Myriclv,  39  Ark, 
4-24;  Johnson  i\  Pontious,  118  Lid.  270,  274;  Berry  i\.  Hartzell,  91  Mo.  132; 
Thomas  tJ.  Griffith,  08  Iowa,  11;  Dickman  v.  Birkh.auser,  10  Nebr.  080,  089; 
Baker  v.  Wi-,well,  17  Nebr  59;  Haines  v.  Spanogle,  17  Nebr.  037;  Loi-d's 
Appeal,  105  Pa.  St.  451 ;  Marshall  v  Peck,  91  111  187  ,  Rogers  ».  Wolfe,  104  Mo 
1;  Ferbrache  i).  Ferbrache,  110  111,  210;  Brownlee  «.  Fenwick,  103  Mo.  420; 
Taylor  v.  Van  Schi-oeder,  (Mo.)  10  S.  W.  075  ;  Johnscm  v.  Pontious,  118  Ind.  270  ; 
Wagonblast  v.  Whitney,  12  Oreg,  83  ,  Sample  v.  Collins,  (Iowa)  40  N.  W.  Rep. 
742  ;  Foster  v.  Maginnis,  89  Cal.  204. )  In  Mortimer  v.  Orchard,  '2  Ves.  243, 
supra,  the  bill  alleged  one  agreement,  the  plaintiffs  only  witness  proved  a  dif- 
ferent one,  while  the  defendants,  in  their  answer  admittcMl  a  third.  Lord  Rosslvn, 
although  dcci-eeing  a  spccilic  performance  uf  the  agreement  as  admitteil  in  the 
answer,  because  of  the  lai-ge  expernlituie  made,  sail  I  that,  in  strictness,  the 
plaintilFs  bill  ought  to  have  been  dismb^sed.  In  Reynolds  m.  Waring,  Younge, 
«4!i,  supra,  the  evidence  for  the  plaintiff  (;ousisted  of  the  t(!stimony  of  one  witness, 
an  1  of  a  memorandum  of  the  contract  made  in  a  poclvct-tiook,  anil  ju-odnced. 
The  witness  stated  the  j)i-ice  to  l)e  1,000  guineas,  exclu.sire  of  tin:  tbnbcr,  while 
the  memorandum  contained  no  mention  of  the  tnn1/ei.  Tliis  vai-iation  left  the 
material  terms  as  to  the  price  in  complete  uncertainty,  and  the  liill  was  dis- 
misse<l.  The  rule  was  iaid  down  \-ei-y  rigidly  in  the  late  casci  of  Cox  v  Co\,  2 
Casey,  875,  supra,  in  which  the  coui-t  said  :  "Tlie  plaintiff  n.ust  state  liia  case  Jis 
he  m(!ans  to  ])rove  it.  and  thim  ))rove  it  .as  it  has  been  stated;  .-nid  he  cannot 
allege  dillV'ront  or  inconsistent  sti))nl;itions  or  agreements,  and  then  leave  the 
court  to  decide  whicli  is  substantiated  by  the  (evidence." 

(1)  Robertson  v.  Robei-tson,  9  Watts.  32.  42  ;  Woods  v.  F.armare.  10  Watts.  19.'), 
205.  207  ;  Moore  v.  Small.  7  Hai-i-is,  401,  470  ;  Camden  &  Aml)oy  R.  R.  v.  Stewart, 
3  C.  E.  Green,  489. 

199 


194  SPECIFIC  PERFOKMAyCE    OF  CO  NTH  ACTS. 

ject-raatter  and  all  the  material  terms  of  the  contract  can  be  deter- 
mined with  reasonable  certainty  from  all  the  evidence;  if  the  judge 
can  ascertain,  from  all  the  proofs,  what  the  contract  really  is,  he  miisr, 
decree  its  execution,  and  in  the  words  of  Lord  Cottenham,  he  "  will 
endea^^or  to  collect,  if  he  can,  what  the  terms  of  it  really  were."  It 
is  plainly  the  habit  of  the  English  courts,  when  a  jiart  performance 
has  been  fully  made  out,  to  establish  the  contract,  if  it  can  possibly 
be  done,  although  the  evidence  may  be  quite  conflicting,  and  even 
uncertain. (1)  There  are  certain  instances  in  which  a  clear  and  dis- 
tinct variation  between  the  contract  as  alleged  by  the  party,  and  that 
proved  by  him — not  merely  a  vagueness  or  doubt  as  to  any  of  its 
terms  arising  from  uncertain  or  conflicting  evidence — will  not  prevent 
the  court  from  granting  him  the  relief,  if  the  agreement  is  otherwise 
sufficiently  established.  These  instances  are  :  1.  Where  the  plain- 
tiff's allegation  is  the  statement  of  some  term  operative  against  him- 
self, which  his  evidence  fails  to  prove  ;  or  is  the  omission  of  some  term 
favorable  to  himself,  which  his  evidence  does  make  out.  Under  such 
circumstances,  the  defendant  would  have  no  ground  for  objecting, 

(1)  Mundy  v.  Jolliffe,  5  My.  &  Cr.  167,  177 ;  East  India  Co.  v.  Nuthumbadoo 
Veerasawmy  Moodelly,  7  Moo.  P.  C.  C.  482  ;  Laird  v.  Birkenhead  Ry.  Co.,  Johns. 
500;  Wilson  v.  West  Hartelpool  Ry.  Co.,  10  Jur.  (N.  S.)  1065;  11  Jiir.  (N.  S.) 
124 ;  34  Beav.  187  ;  2  DeG.  J.  &  S.  475 ;  Oxford  v.  Provand,  L.  R.  2  P.  C.  135, 
148  ;  Baumann  v.  James,  L.  R.  3  Ch.  508  ;  Rhodes  v.  Rhodes,  3  Sandf.  Ch.  279, 
281  ;  Parkhurst  xi.  Van  Cortlandt,  14  Johns.  15,  37 ;  Burns  i\  Sutherland,  7  Barr. 
103,  106  ;  Hooper -0.  Laney,  39  Ala.  338  ;  Long  w.  Duncan,  10  Kans.  294;  [Wharton 
V.  Stoutenburg-h.  35  N.  J.  Eq.  266  ;  Mudg-ett  v.  Clay,  5  Wash.  St  103 ;  Dunckel 
V.  Dunckel,  141  N.  Y.  427;  Wylie  v.  Charlton,  (Nebr.)  62  N.  W.  Rep.  220  (Febr. 
6,  1895)  ;  Allison  v.  Burns,  107  Pa.  St.  50  ;  Brown  v.  Sutton,  129  U.  S.  238.]  In 
Mundy  v.  Jolliffe,  supra,  Lord  Cottenham  said  :  "  Courts  of  equity  exercise  their 
jurisdiction  in  decreeing  specific  performance  of  verbal  agreements,  when  there 
has  been  part  jjerformance,  for  the  purpose  of  preventing  the  great  injustice 
which  would  arise  from  permitting  a  party  to  escape  from  the  engagements  he 
has  entered  into,  upon  the  ground  of  the  statute  of  fi-auds,  after  the  other  party 
to  the  contract  has,  upon  the  faith  of  such  engagement,  expended  his  money,  or 
otherwise  acted  in  execution  of  the  agreement.  Under  such  circumstances,  the 
coui't  will  struggle  to  prevent  such  injustice  from  being  effected ;  and  with  that 
object  it  has,  at  the  hearing,  when  the  plaintiff  has  failed  to  establish  the  pi-ecise 
tei'ms  of  the  agreement,  endea\  ored  to  collect,  if  it  can,  what  the  terms  of  it 
really  were."  And  in  East  India  Co.  v.  Nuthumbadoo  Veerasawmy  Moodelly, 
supra,  Sir  George  Turner,  L.  J.,  said  :  "There  are  cases  in  which  the  court  will 
go  to  a  great  extent  in  order  to  do  justice  between  the  parties,  where  jiossession 
has  been  taken,  and  there  is  an  uncei-tainty  about  the  terms  of  the  contract."  In 
one  very  old  case  Lord  Chancellor  Jkffries  really  made  aconti-act  for  the  parties 
where  none  had  been  proved.  Aiwn.,  5  Ven.  Abr.  523,  pi.  40 ;  but  this  case,  of 
course,  goes  far  beyond  the  rule  as  now  well  established.  For  cases  illustrating 
the  old  chancery  practice  of  ordering  a  special  "  inquiry  "  before  a  master,  when 
the  evidence  at  the  hearing  was  insufficient,  see  Boardman  v.  Mostyn,  6  Ves.  470 ; 
Allan  V.  Bower,  3  Bro.  C.  C.  149  ;  Clinan  v.  Cook,  1  Sch.  &  Lef.  22 ;  Savage  v. 
Carroll,  1  Ball.  &  B.  265,  550,  551 ;  Story    Eq.  Jur.  §  764. 

200 


PART  PERFOKMANCE.  196 

and  the  decree  would,  of  fourf^e,  conforni  to  tlie  rontract  as  averred, 
unle:?s  t.lie  plaintirt'  was  permitted  to  amend  liis  pleading. ^1)  2.  Where 
the  variation  is  not  material,  which  liappi-n.s  when  it  consists  in  the 
addition  of  a  term  which  would  necessarily  be  implied  from  the  aver- 
ments, or  in  the  omission  of  a  term  which  lias  actually  been  per- 
formed.(2)  If  the  agreement,  as  alleged  by  the  plaintirt",  is  admitted 
by  the  defendant  in  his  answer,  no  other  proof  of  it  is  necessary. 
This  is  so,  even  when  the  statute  of  frauds  is  ex])ressly  set  up  as  a 
defense,  provided  there  has  been  a  part  performance,  for  the  part 
performance  obviates  the  statute,  and  the  only  issue  thus  presented 
by  the  pleadings  for  trial,  is  whether  the  agreement,  as  admitted, 
has  been  part  performed. (8) 

Sec.  138,  Where  parties  have  entered  into  a  written  agreement, 
and  have  then  added  to  or  varied  its  terms  by  parol — or  in  other 
words,  where  the  whole  agreement  is  partly  written  and  i)artly  verbal 
— and  there  has  been  a  part  performance  of  the  parol  portion,  the 
rule  is  settled  in  England,  that  the  entire  contract,  the  writing,  with 
the  parol  variation  of  it,  will  be  specifically  enforced.  It  is  said  that 
the  familiar  doctrine  which  forbids  the  \ariation  of  a  written  agree- 
ment by  parol  evidence,  does  not  ai)i)ly  to  such  a  case  ;  that  part 
performance  would  permit  the  whole  contract  to  be  proved  by  parol 
evidence,  and  a  fortiori,  a  portion  of  it  may  be  thus  made  out. (4) 
Such  additional  verbal  terms  or  verbal  variations  of  the  written  agree- 
ment must,  however,  have  been  so  far  carried  into  eff'ect  or  executed, 
as  to  bring  them  within  the  doctrines  of  part  performance,  which 
guide  a  court  of  equity  in  specifically  enforcing  all  parol  contracts. (5) 

(1)  Clifford  V.  Tun-ell,  1  Y.  &  C.  C.  C.  138  ;  Gre|,-oi-y  v.  Mighell.  18  Yes.  328 ; 
Mundy  v.  JoUiffe,  5  My.  &  Ci-.  167.  In  Greg-oi-y  v.  Mighell,  the  plaintiff,  a 
tenant,  alleged  a  conti-act  by  which,  among  other  things,  he  was  to  pay  taxes  and 
do  necessary  repairs ;  but  his  evidence  was  silent  in  respect  to  this  onerous  term. 
In  Mundy  v.  Jolliffe,  the  plaintiff,  also  a  lessee,  averred  a  contract  by  which, 
among  other  things,  he  was  required  to  drain  the  lands  generally,  ami  wsis  to 
turn  cei'tain  arable  land  into  pasture  ;  but  his  proof  only  showed  that  be  was 
to  drain  lohere  necessary,  and  omitted  all  mention  of  the  other  pai'ticular.s.  It 
should  be  observeii  that  the  rule  stated  in  the  text  is  based  upon  the  fact  that  the 
plaintiff  cannot  take  advantage  of  the  evidence  in  his  favor,  but  must  a])ide  by  the 
allegations  of  his  pleading,  which  ai-e  more  unfavoi-aV)le  to  him  than  \\w  evi- 
dence is. 

(2)  Lucas  V.  James,  7  Hare,  410,  424.  See  ante,  §  64.  as  to  immaterial  varia- 
tions between  a  proposal  iv^.A  an  acceptance.  The  same  docti-ine  must  ajiply  to 
like  variations  Vjctween  the  contract  as  alleged,  and  that  as  proved. 

(3)  Cooth  V.  Jackson,  6  Ves.  12. 

(4)  Anon.,  5  Yin.  Abr.  522.  pi.  38 ;  Sutherland  r\  Briggs,  1  Hare,  26.  3r>. 

(5)  Espy  V.  Anderson,  2  Harris,  308;  McCorklev.  Bi-own,  9  Smedes  &  Marshall, 
167.     See  the  discussion  of  this  subject  at  large,  post,  in  .section  xiii,  §§  246-2.')8. 

201 


196  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

It  has  been  hold  that  wliere  the  original  agreement  is  written,  and 
the  parties  have  made  verbal  additions  or  variations,  the  plaintiff  can- 
not prove  them  unless  he  shows  a  part  performance,  referable  solely 
to  them,  and  which  would  not  have  been  done  under  the  original 
agreement. (1)  By  some  of  the  American  decisions  the  ordinary  rule 
against  adding  to  or  modifying  a  written  contract  is  applied  to  this 
class  of  cases,  and  a  parol  variation  of  an  agreement  in  writing,  is 
not  admitted  to  be  proved  by  the  plaintiff,  even  when  part  performed, 
unless  the  element  of  fraud  or  mistake  ia  present,  which  always  fur- 
nishes a  ground  for  the  interposition  of  equity.  According  to  this 
restricted  view,  when  a  written  contract  is  accompanied  or  followed 
by  verbal  additions  or  variations  of  such  a  nature,  or  under  such  cir- 
cumstances that  it  would  be  a  fraud  upon  the  plaintiff  if  he  were  held 
to  the  writing  alone,  and  these  parol  stipulations  have  been  part  per- 
formed, the  whole  agreement  is  treated  as  though  it  were  unwritten ; 
the  plaintiff  may  introduce  parol  evidence  to  establish  the  actual  con- 
tract, and  the  court  will  specifically  enforce  it  as  established. (2)  A 
mistake  in  the  written  agreement  will  produce  the  same  effect  as 
fraud  upon  this  theory. (3) 

Sec.  139.  According  to  the  doctrine  of  a  few  early  cases,  where  the 
parties  expressly  stipulated  that  their  agreement  should  be 
reduced  to  "writing,  the  case  was  not  covered  by  the  statute  of  frauds, 
although  the  stipulation  was  not  carried  into  effect.  (4)  This,  however,  is 
not  the  law.  It  is  now  well  settled  that  the  failure  to  execute  a  written 
contract  according  to  the  original  intention  of  the  parties,  in  order  to 
obviate  the  prohibition  of  the  statute,  must  have  been  caused  by  the 
defendant's  actual  fraud,  or  by  a  clear  mistake,  or  by  an  accident.(5) 

(1)  Price  V.  Dyer,  17  Ves.  356-364  ;  Stevens  v.  Cooj^er,  1  Johns.  Ch.  425,  430; 
Espy  V.  Anderson,  2  Harris,  308 ;  McCorkle  v.  Brown,  9  Sm.  &  Mar.  167  ;  [Buttz 
V.  Colton,  (Dak  )  43  N.  W  717.] 

(2)  Phyfe  v.  Wardell,  2  Edw.  Ch.  47,  50,  51 ;  Parkhurst  v.  Van  Cortland,  14 
Johns.  15 ;  Coles  v.  Bowne,  10  Paige,  527,  535 ;  Dock  v.  Hart,  7  Watts  &  Serg. 
172  ;  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  274,  283  ;  Dwight  v.  Pomeroy,  17 
Mass.  303,  328 ;  Brooks  v.  Wheelock,  11  Pick.  439,  440  ;  Heth's  Ex'or  v.  Woold- 
ridge's  Ex'or,  6  Rand.  605,  610  ;  Kay  v.  Curd,  6  B.  Mon.  100,  103.  [See  also,. 
Roherg!!  v.  Winn,  (N.  Y.)  39  N.  E.  Rep.  631  (Feb.  8,  1895) ;  Wall  v.  Minneapolis, 
etc.,  li.  Co.,  86  Wise.  48.] 

(3)  Tilton  V.  Tilton,  9  N.  H.  386,  392;  PhilpotttJ.  Elliott,  4  Md.  Ch.  273.  See, 
for  a  fuller  examination  of  these  questions,  section  xiii,  §§  246-262. 

(4)  Hollis  V.  Whiting,  1  Vern.  151,  159 ;  Leak  v.  Morrice,  2  Ch.  Cas.  135.  See 
the  recent  case  of  Wolford  v.  Herrington,  24  P.  F.  Smith,  311,  which  seems,  in 
part  at  least,  to  maintain  the  same  doctrine. 

(5)  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  565.  per  Lord  Thurlow  ;  Finucane  v. 
Kearney,  1  Freeman,  65,  69 ;  Bernard  i\  Flinn,  8  Ired.  204 ;  Glass  v.  Hulbert, 
102  Mass.  24,  39.  A  false  representation  of  the  contents  or  effect  of  a  written 
instrument  may  be  ground  for  a  reformation,  although  within  the  statute  of 
frauds,  since  the  statute  shall  not  be  used  to  sustain  a  fraud.     Tyson  u.  Passmore, 

202 


PART  PERFORMANCE.  197 

The  case,  therefore,  does  not  fall  uiulor  the  principles  of  part  per- 
formance, but  belongs  to  an  entirely  distinct  head,  which  will  be  dis- 
cussed in  succeeding  paragraphs. (1)  When  the  jilaintitf  alleges  :ui 
agreement,  and  the  defendant  states  a  somewhat  different  one  in  his 
answer,  which  is  sustained  by  the  evidence,  while  the  acts  of  part  per- 
formance are  sufficiently  applicable  to  both,  the  question  arises, 
whether  the  plaintiff  must  fail  iii  his  suit,  or  whether  he  is  entitled  to 
a  decree  enforcing  the  agreement  admitted  by  the  defendant  to  have 
been  made.  If  the  variation  was  slight  and  immaterial,  an  amend- 
ment would,  by  the  present  practice,  be  allowed  as  a  matter  of  course 
upon  the  trial.  If  the  variation  was  consi(hn'al)lo  and  really  material, 
an  amendment,  upon  terms,  would  be  granted,  according  to  the 
reformed  procedure,  as  his  suit  is  only  to  be  dismissed  when  there  is  a 
complete  failure  of  proof  to  maintain  the  cause  of  action  alleged.  The 
decisions,  under  the  old  chancery  practice,  leave  the  question  above 

2  Ban-.  122;  Lincoln  v.  Wright,  4  DeG.  &  J.  16,  20,  22;  Taylor  v.  Lutlier,  2 
Sumner,  229,  232.  But  the  mei-e  viohxtion  of  a  jironiise  is  not  a  fraud,  unless  the 
promise  itself  was  originally  made  with  a  fi-audulent  intent.  Montacnte  ?'.  Max- 
well, 1  P.  Wms.  618;  Batturs  v.  Sellers,  6  Har.  &  Johns.  249  ;  Lambert -?'.  Wat- 
son. 6  Har.  &  J.  252 ;  Wilson  v.  Watts,  9  Md.  436 ;  Walker  v.  Hill,  6  C.  E.  Green, 
191 ;  Glass  v.  Hulbert,  102  Mass.  24,  39  ;  Purcell  v.  Miner,  4  Wall.  513  ;  [Dunphy 
V.  Ryan.  116  U.  S.  491  ;  Green  v.  Groves,  109  Ind  519  ;  Cay  lor  v.  Roe,  99  Ind. 
1 ;  Crabill  v.  Marsh,  38  Ohio  St.  331.]  This  doctrine  has  been  applied  in  some  of 
the  decisions,  both  when  the  promise  extends  to  the  whole  agj-eement,  and  when 
it  extends  only  to  some  stipulation  or  term  which  has  been  omitted  under  a  i)arol 
agreement  that  it  shall  be  as  binding  as  though  inserted  ;  and  the  suit  is  brought, 
an,l  tlie  attempt  is  made  to  add  it  to  the  written  contract,  or  to  treat  the  writinjj 
as  though  the  verbal  term  was  part  of  it.  Glass  v.  Hulbert;  Battui\s  v.  Sellers; 
Wilson  V.  Watts ;  Walker  v.  Hill,  supi'a.  In  Wilson  v.  Watts,  the  doctrine  was 
thus  laid  down :  "  Where  there  is  a  written  contract  in  relation  to  land,  and  some 
of  the  terms  or  provisions  in  the  verbal  agreement  of  the  parties  are  not  included 
in  the  writing,  but  omitted  by  design,  even  on  the  express  understanding  that 
such  provisions  shall  be  carried  into  effect  in  the  same  manner  as  if  they  consti- 
tuted part  of  the  written  instrument,  if  there  is  no  fraud,  undue  influence,  sur- 
prise or  mistake,  either  in  the  making  of  such  contract,  or  in  the  reducing  it  to 
writing,  parol  evidence  will  not  be  admitted  to  enforce  the  omitted  jirovisions,  or 
for  the  pui'pose  of  contradicting,  adding  to,  or  varying  the  written  instrument, 
although  subsequently  to  its  execution,  one  of  the  parties  has  fraudulently 
refused  to  comply  with  the  omitted  provisions,  and  in  open  violation  of  good 
faith  and  fair  dealing,  insists  upon  his  right,  under  the  statute  of  frauds,  to  have 
the  contract,  as  written,  carried  into  eflect."  So  far  as  the  doctrine  of  these 
decisions  would  require  that  the  writing  should  be  obligatory  and  enforced, 
although  it  does  not  contain  all  the  terms  of  the  agrocnicnt,  although  some  of 
the  terms  have  been  iiuriiosely  omitted,  it  cannot  be  reconciled  with  many  other 
cases,  nor,  in  my  opinion,  with  the  pi-iucii)le  that  tlie  mcmoran<lum  must  contain 
all  the  material  terms  upon  whicli  the  ])arties  have  agreed.  See,  for  example, 
Jervis  v.  Beri-idge,  L.  R.  8  Ch.  351,  the  facts  of  which  are  given,  aiilr,  ^  91. 
(1)  See  2}ost,  §§  246-262. 

2o;i 


198  SPKCIF/C   I'KRFORMAXf  K    OF  CO.XTRACTS. 

sufffi-ested  in  some  doubt.  The  y-eneral  rule  was  settled,  that  a  con- 
tract  admitted  by  tlie  defendant  must  be  substantially  the  same  with 
that  alleged  in  the  bill,  in  order  that  the  plaintiff  can  avail  himself  of 
such  admission. (1)  The  court  has,  however,  in  the  condition  of  the 
pleadings  and  proofs  described,  granted  relief  to  the  plaintiff,  by 
decreeing  performance  of  the  contract  as  admitted  by  the  defend- 
ant. (2)  On  the  other  hand,  this  mode  of  proceeding  has  been  disap- 
proved, and  very  decidedly,  by  Lord  Rkdesdale,  who  held  that  the 
acts  of  part  performance  could  only  be  applied  to  the  very  contract  set 
up  by  the  plaintiff,  and  it  alone  could  be  enforced. (3)  The  rule  to  be 
deduced  from  the  more  modern  American  authorities,  is  that  the  court, 
in  such  a  case,  has  a  discretionary  power  to  enforce  the  agreement 
alleged  by  the  defendant,  without  driving  the  plaintiff  to  another 
action,  but  is  not  bound  to  do  so;  and  this  conclusion  is  certainly  in, 
complete  harmony  with  the  theory  and  provisions  of  the  reformed 
codes  of  procedure,  adopted  in  a  large  number  of  the  states.(4) 
Admission  of  the  contract  by  the  defendant's  ans-wer. 

kSec.  140.  In  addition  to  part  performance  there  are  two  other  causes 
which  operate  to  take  a  verbal  contract  out  of  the  statute  of  frauds 
— or,  to  speak  more  accurately,  which  furnish  a  ground  on  which  a 
court  of  equity  will  specifically  enforce  such  a  contract,  notvs'ithstand- 
ing  the  statute.     These  two  conditions  I  now  proceed  to  discuss. 

When  a  verbal  contract  is  alleged  by  the  plaintiff,  and  the  defend- 
ant admits  it  in  his  answer,  without,  at  the  same  time,  interposing 
the  statute  of  frauds  as  a  defense  in  his  pleading,  such  contract  will 
be  established  and  enforced  by  the  decree  of  the  court ;  no  evidence 
is  necessary  to  prove  it,  and  no  part  performance  is  requisite.  (5) 
Although  this  rule  is  firmly  established,  the  cases  and  text-writers 
are  not  agreed  as  to  the  reasons  for  its  adoption.  Three  principal 
ones  have  been  suggested  ;     First.  It  has  been  said  that  such  an 

(1)  Legal  V.  Miller,  2  Ves.  Sen.  290  ;  Leigh  v.  Havertield.  5  Ves.  452  ;  Willis  v. 
Evans,  2  Ball  &  B.  228 ;  Lindsay  v.  Lynch,  2  S(;h.  &  Lef.  1  ;  Harris  v.  Knicker- 
backer,  5  "Wend.  638. 

(2)  As  in  Mortimer  v  Orchard,  2  Ves.  243,  heretofore  cited.  Lord  Loughborough 
said,  that  though,  in  strictness,  the  bill  ought  to  be  dismissed,  yet,  as  there  had 
been  part  performance  of  some  agreement  between  the  i)arties,  and  that  set  up 
by  defendants  was  established  by  a  strong  jireponderance  of  evidence,  he  would 
order  it  to  be  enforced  ;  but  he  required  plaintitf  to  pay  the  costs. 

(3)  Lindsay  v.  Lynch,  2  Sch.  &  L  1 ;  and  see  Willis  v.  Evans,  2  Ball  &  B.  228  ; 
Harris  v.  Knickerbackei-,  5  Wend.  638 

(4)  See  ca'-es  cited  2^ofit,  under  §§  252-258.  [See  also,  Cairncross  v.  McGrain, 
37  Minn    ITO  ;  Neale  v.  Neales,  9  Wall.  1  ) 

(5)  Gunta  «  Halsey,  Ambl.  586  -,  Simondson  v.  Tweed,  Gilb.  35 ;  Rondeau  v. 
Wyatt,  2  H  Bl.  68,  ])er  Lord  Rosslyn  ;  Att'y-Gen.  n  Day,  1  Ves.  Sen.  221;  Lacon 
v.  Mertins,  3  Atk  3  ;  Collington  v.  Flether,  2  Atk  155 ;  Crayston  v.  Banes,  1 
Eq.  Cas.  Abr  19.  Prec.  Ch  208  ;  Child  v.  Godolphin,  1  Dick.  39;  Whitchurch 
V.  Bevis,  2  Bro  C.  C.  566,  567  ;  Spui-riur  v-  Fit/gerald,  6  Ves.  .548,  555  ;  Cooth  v. 
Jackson,   6  Ves.    12;  Att'y-Gen.   v.    Sitwell,   1  Y.  &  C.   Exch.   583;    Newton  v. 

204 


FART   I'KKFORMANCE.  199 

admission  by  the  defendant  obviates  all  the  dangers  wliich  the  statute 
was  intended  to  prevent ;  that  the  object  of  the  legislature  was  to 
remove  all  the  ojjportunity  and  occasion  for  frauds  and  perjuries  which 
are  furnished  by  mere  jiarol  testimony,  and  the  written  statements 
by  both  tlie  })arties  in  their  j)leadings  as  to  the  terms  of  their  agree- 
ment, leave  no  possible  room  for  any  fraud  or  perjury. (1)  /Secoudlt/^  it 
has  been  suggested,  and  especially  by  Judge  IStory,  that  the  answer 
signed  by  the  defendant,  or  by  his  attorney,  and  admitting  tlie  con- 
tract as  set  forth  by  the  plaintiff,  technically  and  literally  satisfies 
the  very  demands  of  the  statute,  since  it  is  a  note  or  memorandum  in 
writing  signed  by  the  party  to  be  charged,  or  by  his  agent  duly 
authorized. (2)     Thirdly,  it  is  argued  that  an  admission  of  the  con- 

Swazey,  8  N.  H.  9,  13 ;  Tilton  v.  Tilton,  9  N.  H.  386,  389 ;  Harris  v.  Kiiickei-- 
backer,  5  "Wend.  638  ;  Cozine  v.  Graham,  2  Paig-e,  178,  181  ;  Vaupell  v.  Wood- 
ward, 2  Sandf.  Ch.  143,  144 ;  Jervis  v.  Smith,  Hoflf.  Ch.  470,  476 ;  Chetwood  v. 
Brittain,  1  Green  Ch.  430 ;  Dean  v.  Dean,  1  Stockt.  Ch.  42.') ;  Houser  v.  Lamont, 
55  Pa.  St.  311 ;  Artz  v.  Grove,  21  Md.  456 ;  Albert  v.  "Ware,  2  Md.  Ch.  160 ;  6 
Md.  66  ;  Hall  v.  Hall,  1  Gill,  383,  386  ;  Argenbri<rht  v.  Campbell,  3  Hen.  &  Mimf. 
144;  Hollingshead  v.  McKenzie,  8  Geo.  457;  Kirksey  ?j.  Kirk.sey,  30  Geo.  156; 
Patterson  v.  Ware,  10  Ala.  445,  447  ;  Baker  v.  Hollobough,  15  Ark.  322 ;  Gai-nei* 
r.  Shebblefield,  5  Tex,  552  ;  Sneed  v.  Bradley,  4  Sneed,  301  ;  Woods  v.  DiUe,  11 
Ohio,  455  ;  Minus  v.  Morse,  15  Ohio,  568,  571  ;  Switzer  v.  Skiles,  3  Gilm.  (111.) 
529,  534;  Tartleton  v.  Vietes,  1  Gilm.  (111.)  470,  473;  Dyer  v.  Martin,  4  Scam. 
(111.)  146  ;  Thornton  v.  Henry's  Heirs,  2  Scam.  219,  220 ;  Esmay  v.  Grotser,  18. 
111.  483 ;  McGowan  v.  West,  7  Mo.  569  ;  Burt  r.  Wilson,  28  Cal.  132 ;  [Battel!  v. 
Matot,  58  Vt.  271 ;  Jones  v.  Lloyd,  117  111.  597  (answer  of  defendant  in  former 
suit  a  sufficient  memorandum)  ;  Lockhart  r  White,  77  Ga  786 ,  Shakespeare  v 
Alba,  76  Ala.  351;  Scofield -y.  Stoddard.  58  Vt  20C  ,  Burley  v.  Irwin,  72  Ala. 
505.]  In  Ridg-way  v  Wharton.  3  De  Gex,  M.  &  G  68t) ,  f.  House  of  L.  Ca.sc.«, 
238,  Lord  Chancellor  Cranwoktu  said,  that  -when  a  iefendant,  by  answer, 
admits  an  ag'reement,  if  he  means  to  rely  on  the  fa(  t  cf  it  not  being-  m  writiny;- 
and  sig"ned,  and  so  being-  invalid  by  reason  oi  tlie  statute  of  frauds,  he  must  .say 
so;  otherwise  he  is  taken  to  mean  that  the  admitted  agreement  was  a  wiutten 
agreement,  good  under  the  statute,  or  else  tha.1  on  some  other  ground  it  was 
binding  on  him."  This  rule  is  carried  so  far,  at  all  events  in  England,  that  in 
Skinner  v.  McDouall,  2  De  G.  &  Sm.  265,  where  the  defendant,  in  his  answer, 
alleged  that  no  formal  note  of  the  agreement  was  made,  and  denied  that  any 
binding  agreement  ever  existed,  but  did  not  exjiressly  claim  the  benefit  of  the 
statute  of  frauds,  V.  C.  K>'i(iHT  Brltb  held,  at  the  heai-ing  that  he  was  not 
entitled  to  the  benefit  of  the  statute.  See  Hays  v.  Actley,  4  De  G  J.  &  S.  34  ;  12 
W.  R.  64.  In  Sneed  v.  Bradley,  4  Sneed,  (Tenn.)  301,  it  was  held  that  only  the 
parties  to  a  contract,  and  those  claiming  under  them,  as  heirs  or  purchasei-s,  have 
the  light  to  set  up  the  statute  as  a  defense  ;  that  a  general  creditor  or  subsecjuent 
judgment-creditor  cannot  avail  himself  of  it  [That  the  benefit  of  the  sta^tute  is 
waived,  also,  when  no  objection  is  made  to  the  admission  of  jiarol  oviilence  of  the 
contract,  see  Nunez  7'.  Morgan,  77  Cal   427.  J 

(1)  See  Rondeavi  v.  Wyatt,  2  II.  Bl.  68,  per  Lord  Rossi. yn,  and  ciuses  cited  undoi- 
the  preceding  note. 

(2)  Story  on  Eq.  Jiu-.,  §  755. 

2U6 


200  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

tract,  without  at  the  same  time  setting  up  its  invalidity  or  the  impos- 
sibility of  enforcing  it  resulting  from  the  statute,  is  a  deliberate  and 
formal  waiver  of  all  benefit  which  the  defeudaixt  miglit  have  derived 
from  the  legislation — this  benefit  being  personal,  and  therefore  capable 
of  being  waived. (1)  Both  the  first  and  second  of  these  reasons  are 
open  to  an  objection  fatal  to  each  of  them.  If  sound,  they  should 
apply  with  equal  force  to  the  case  where  the  defendant  sets  up  and 
relies  on  the  statute  after  admitting  the  contract,  and  to  that  where 
he  does  not  set  up  the  statute.  If  an  admission  of  the  agreement 
obviates  the  dangers  of  perjury,  or  constitutes  itself  a  memorandum, 
this  would  be  none  the  less  true  if  the  defendant  should  add  to  such 
admission  a  plea  of  the  statute  as  a  defense.  The  rule  cannot  be 
accounted  for  on  either  of  these  grounds ;  its  explanation  must  be 
found  in  the  third  reason,  which  alone  is  consistent  with  other  doc- 
trines. In  some  cases  it  has  been  held  that  where  the  defendant 
merely  makes  default  by  not  answering,  and  the  bill  is  thus  taken 
pro  confesso,  the  contract,  as  alleged  by  the  plaintiff,  is  thereby 
admitted,  and  the  requirements  of  the  statute  are  obviated.  (2)  This 
particular  rule,  however,  is  not  in  accordance  with  the  procedure  pre- 
vailing in  New  York  and  many  other  states,  which  requires,  where 
default  is  made  in  such  kind  of  actions,  the  plaintiff  to  prove  a  prima 
facie  case  as  alleged  by  legal  evidence  satisfactory  to  the  court. 

Sec.  141.  Where  an  admission  has  been  thus  made  by  the  defend- 
ant its  effect  is  permanent,  and  is  not  confined  to  the  issue  raised  by 
those  identical  pleadings.  If,  therefore,  after  having  made  such 
admission,  the  defendant  should  die  before  decree,  the  effect  would 
extend  to  and  bind  his  heirs  or  personal  representatives,  and  the  con- 
tract could  be  enforced  against  them  in  the  suit  revived  for  that  pur- 
pose.(3)     And  after  admitting  the  contract  the  defendant  cannot,  in 

(1)  See  cases  cited  or  referred  in  last  note  but  one. 

(2)  Newton  v.  Swazey,  8  N.  H.  9 ;  Wliiting  v.  Gould,  2  Wise.  552  ;  Esmay  v. 
Gorton,  18  III.  483  ;  James  v.  Rice,  1  Kay  Ch.  23. 

(3)  Atty.-Gen.  v.  Day,  1  Ves.  Sen.  218,  221  ;  Lacon  v.  Merlins,  3  Atk.  3 ;  [Bat- 
tell  1)  Matot,  58  Vt.  271].  It  was  held  in  early  cases  that  where  a  vendor  dies, 
and  a  bill  is  tiled  by  his  personal  representatives  against  his  heir  and  the  jiur- 
chaser,  an  admission  by  the  purchaser  would  bind  not  only  himself  but  also  the 
vendor's  heir-  Lacon  v.  Mertins,  3  Atlc.  1 ,  Pottei-  v-  Potter,  1  Ves.  Sen  437. 
This  doctrine  has  been  abandoned.  In  order  that  either  the  heir,  or  the  personal 
reqresentative  of  a  deceased  party,  may  be  able  to  enforce  the  contract  ag-ainst 
the  other,  the  deceased  at  the  time  of  his  death  must  have  been  legally  bound  to 
perform  the  contract ;  although  either  his  personal  representative  or  his  heir  may 
be  willing  to  abide  by  the  agreement,  in  the  absence  of  any  binding  quality,  the 
other  can  take  any  objection  which  the  deceased  contractor  might  have  taken 
had  he  been  living.     Buckmaster  v.  Harroj),  7  Ves.  341  ;  13  Ves.  456. 

206 


PART  PERF0R3IANCE.  201 

his  answer  to  an  amended  bill  or  complaint  filed  by  tl)e  plaintiff, 
withdraw  such  admission  and  set  up  the  statute  as  a  defense. (1)  On 
the  other  hand,  the  rule  is  equally  well  established,  botli  in  England 
and  in  this  country,  tliat  the  defendant,  although  admitting  in  his 
answer  tlie  parol  agreement  charged  in  the  bill  or  complaint,  may  at 
the  same  time  insist  upon  its  want  of  conformity  with  the  require- 
ments of  the  statute  of  frauds,  and  such  defense  will  constitute  a  com- 
plete bar  to  a  decree  in  favor  of  the  piaintitt',  unless  he  can  show  a  i»art 
performance  in  conformity  with  the  princii)k\s  hereinbefore  stated. (2) 
Where  a  compliance  -with  the  statute  has  been  prevented 
by  actual  fraud. 
Sec.  142.  It  was  stated  in  section  140  that,  in  addition  to  part 
performance,  there  are  two  other  causes  which  furnish  a  ground  for 
the  enforcement  in  equity  of  a  verbal  contract  notwithstanding  the 
statute  of  frauds.  One  of  these  has  just  been  considered,  and  I  now 
proceed  to  treat  of  the  other.  It  is  the  case  of  actual,  positive  fraud. 
It  is  a  familiar  and  thoroughly  established  doctrine  of  equity,  that  the 
statute  which  was  enacted  for  the  purpose  of  preventing  fraud,  shall 
not  be  made  the  instrument  of  shielding,  protecting,  or  aiding  the 
party  who  relies  upon  it,  in  the  perpetration  of  a  fraud,  or  in  the 
consummation  of  a  fraudulent  scheme. (3)  The  principle  was  clearly 
stated  by  Lord  Eldon,  as  follows :  "  Upon  the  statute  of  frauds, 
though  declaring  that  interests  shall  not  be  bound  except  by  writing, 
cases  in  this  court  are  perfectly  familiar,  deciding  that  a  fraudulent 
use  shall  not  be  made  of  that  statute  ;  where  this  court  has  interfered 
against  a  party  meaning  to  make  it  an  instrument  of  fraud,  and  said 
that  he  should  not  take  advantage  of  his  own  fraud,  even  though  the 
statute  has  declared  that,  in  case  those  circumstances  do  not  exist, 
the  instrument  shall  be  absolutely  void.  One  instance,  in  the  case  of 
instructions  upon  a  treaty  of  marriage — the  conveyance  being  abso- 
lute, but  subject  to  an  agreement  for  a  defeasance — which,  though  not 

(1)  Spurrier  v.  Fitzg'ei'.-vld,  6  Ves.  548.  This  doctrine  has  been  extended  to  the 
case  when  defendant  in  liis  answer  confessed  a  conti'act,  and  the  jilamtilf,  with 
leave  of  the  court,  amended  his  bill  so  as  to  alleg-e  the  aL'-reenient  thus  ailniitted ; 
defendant  was  not  permitted  to  reti-act  his  admission  and  interpose  the  statute  as 
a  defense.     Patterson  v.  Ware,  10  Ala.  444. 

(2)  Moore  v.  Edwards,  4  Ves.  2  5 ;  Cooth  v.  Jackson,  G  Ves.  12  ;  Rowe  v.  'I'eed, 
\')  Ves.  375 ;  Bla'j;' len  v  Bi-adbeai".  12  Ves.  471  ;  >tearns  v.  Hubbard,  8  Greenl. 
320;  Harris  v.  Knickerbacker.  5  Wend.  038;  Barnes  i\  Teag'ue,  I  Jones  I'"(i.  277; 
Van  Duyne  v.  Vreeland,  1  Beasley,  142,  150  ,  Ash  v.  Dagg-y,  6  Ind.  259  ;  Sneed 
V.  Bradley,  4  Sneed,  301. 

{'I)  See  cases  cited  ante,  iinde^  §§71.  103;  Willink  v.  Vanderveer,  1  Barb.  509; 
Miller  V.  Gotten,  5  Goo.  340  ;  Shields?).  Trammoll,  19  Ark.  51  ;  Trainmll  i\  Brown, 
19  Ark  30;  [Kostenbader  v.  Peters.  SO  Pa.  St.  4;J8  ;  Abbott  v.  llal  Kviu.  01  N.  H. 
.583;  Wakeman  v.  Dodd,  27  N  J.  Ivj.  504;  Brown  r.  P.rown.  33  N.  J.  I^i.  0.50; 
Goodlett  ?r  Hansell,  00  Ala.  151  ;  Townsend  v.  Fenton.  32  Minn.  482;  Green  v. 
Jones,  70  Me.  503;  Woodbury  ?).  Gardner,  77  Me.  ^;  Herren  v.  Rich.  05  N  C. 
500  ;  Savage  v.  Lee,  101  Ind.  514  ;  Seaman  v  Ascherman,  51  Wis.  078 ;  Warren  v. 
Warren,  105  111.  508  ;  Ponce  v.  McWhorter,  50  Tex.  502 ;  Meyer  v.  Mitchell,  75 
Ala.  475.] 

207 


202  SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

appearing  by  the  contents  of  the  conveyance,  can  be  proved  aliunde; 
and  there  are  many  other  instances."(l)  It  is  important,  however,  to 
obtain  a  correct  notion  of  this  doctrine,  and  to  ascertain  exactly  the 
kind  of  fraud  against  which  equity  will  thus  relieve.  The  moral 
wrong  in  refusing  to  be  bound  by  a  verbal  agreement,  because  it  does 
not  comply  with  the  statute,  is  not  the  fraud  intended  by  this  equit- 
able principle  ;  if  it  were,  the  statute  would  be  rendered  entiiely 
nugatory.  There  must  be  some  positive  act  of  contrivance,  deceit, 
false  representation,  or  concealment  on  the  part  of  the  defendant,  by 
which  the  plaintiff  is  prevented  from  insisting  upon  or  obtaining  a 
written  contract,  or  is  induced  to  accept  or  rely  upon  a  parol  agree- 
ment in  place  of  that  required  by  the  statute.  In  other  words,  the 
failure  to  comply  with  the  statute  must  be  the  result  of  the  defend- 
ant's fraudulent  procurement,  independent  of  the  mere  fact  that 
the  statute  is  not  complied  with.  This  distinction  and  the  true  theory 
were  well  stated  in  an  early  case  by  Lord  Macclesfield  ;  the  defend- 
ant being  about  to  marry,  having  verbally  promised  to  his  intended 
wife  that  she  should  enjoy  all  her  own  estate  to  her  ow^n  separate  use 
after  the  marriage,  which  promise  being  made  in  consideration  of 
mamage,  was  directly  within  the  statute.  In  a  suit  to  enforce  the 
agreement,  the  lord  chancellor  said  :  "In  cases  of  fraud,  equity 
should  relieve,  even  against  the  words  of  the  statute,  as  if  an  agree- 
ment in  writing  should  be  proposed  and  drawn,  and  another  should 
be  fraudulently  and  secretly  brought  in  and  executed  in  lieu  of  the 
former ;  in  this,  and  such  like  cases  of  fraud,  equity  would  relieve  ; 
but  where  there  was  no  fraud,  only  a  relying  upon  the  honor,  word, 
or  promise  of  the  defendant,  the  statute  making  those  promises  void, 
equity  will  not  interfere. "(2) 

(1)  Mestaer  v.  Gillespie,  11  Ves.  627,  628,  per  Ld.  Eldon.  The  doctrine  is  well 
illustrated  by  the  recent  case  of  Haig-h  v.  Kaye,  L.  R.  7  Ch.  469,  which  was  a  suit 
to  compel  a  conveyance  of  certain  land.  Plaintiff  had  conveyed  his  land  to  the 
defendant  without  any  actual  consideration,  by  a  deed  absolute  on  its  face,  but 
with  a  verbal  agreement  that  defendant  should  reconvey  on  demand.  Defendant, 
in  his  answer,  admitted  all  these  facts,  but  alleged  that  the  conveyance  was  made 
to  him  to  get  the  land  out  of  the  way  of  an  anticipated  decision  against  the  plain- 
tiff in  a  pending  suit,  and  set  up  the  statute  of  frauds  as  a  bar.  The  court 
overruled  this  defense,  and  decreed  a  reconveyance.  The  opinion,  which  pro- 
ceeded upon  the  principle  stated  in  the  text,  is  an  admirable  and  refreshing 
assertion  of  the  equitable  docti-ine,  and  characterizes  the  conduct  of  the  defendant 
and  his  attempt  to  shield  his  fraud  under  a  plea  of  the  statute  in  strong  but  well 
deserved  terms. 

(2)  Montacute  ■?>.  Maxwell.  1  P.  Wms.  618 ;  S.  C,  ."iub  nom.  Montacue  v.  Max- 
well,  1  Stra.   263;  1  Eq.  Cas.   Abr.  19;  S.   C,  sub  nom.   Maxwells.  Montacute, 

208 


PART  rKUFOIiMANCE.  'lO  \ 

Sec.  14:5.  The  genovul  princiiilo  being  thus  formulated,  it  rernaius  to 
ascertain  the  chisses  and  kinds  of  cases  to  whirli  it  has  been  and  will 
be  applied.  In  tlu*  iiist  place,  where  the  reipiirenients  of  the  statuti; 
have  not  been  complied  with  by  reason  of  tlie  actual  fraud  of  tlie 
defendant,  the  contract  is  not  within  the  statute,  and  will  be  spccili- 
cally  enforced  against  the  fraudulent  party,  although  it  is  merely 
verbal.  The  plaintiff  nuist  be  induced,  through  the  deceit,  false 
statements,  or  concealments  of  the  other  i)arty,  to  waive  a  written 
contract,  and  to  rely  upon  a  parol  undertaking.  The  same  is  true 
when  the  execution  of  a  written  contract,  otherwise  fully  agreed  ujion, 
is  prevented  by  an  inevitable  accident — as,  for  example,  by  the  death 
of  one  of  the  contracting  parties.(l)  The  rule  has  been  often  applied 
in  cases  of  agreements  made  in  anticipation  of  marriage,  where  one 

Prec.  Ch.  .526;  see,  also,  Whitri.lge  ?'.  Parkhurst,  20  Md.  02;  Sclniiidt  v.  Gate- 
wood,  2  Rich.  E(i.  (S.  C.)  162;  Kinarcl-t).  Hiers,  3  Rich.  E(i.  423  ;  Jenkins  u  El- 
dridg-e,  3  Story,  181. 

(1)  Montacute  v.  MaxweU,  1  P.  Wins.  G18  ;  1  Stra.  236  ;  1  Eq.  Cas.  Abr.  19  ;  Piec. 
Ch.  526;  Walker  v.  Walker,  2  Atk.  98;  Joynes  v.   Stathani,  3  Atk.  ;  8'.t ;  Whit- 
church V.  Bevib.  2  Bro.  C.  C.  565  ;  Lincoln  v.  Wright,  4  DeG.  &  Jo.  16,  22  ;  5  Vm. 
Abr.  523.  524;  S.  C,  1  Eq.  Cas.  Abr.  20,  iil.  5  ;  Crocker  v:  Hig-gins,  7  Conn.  342; 
McBurney  ?).  Weilman,  42  Barb.  390;  Ai-noKl  v.  Coi-d,  16   Ind.  177;  Finucane -{>. 
Kearney,  1  Freeman,   65,   69;  Bernard  v.   Flinn,   8  Ind.  204;  Glass  r.  Hnlbert, 
102  Mass.  24,  39.     [Teague  v.  Fowler,  56  Ind.  569  ;    Equitable  Gas  Light  Co. 
V.  Coal  Tar  Co    63  Md.  285  ;    Cubberly  v.  Cubberly,  39  N.   J.  Eq.   514.]    In 
the  case  reported  in  5  Viner,   Abr.  523 ;   1   E(i.   Cas    Abr.   20,  pi.  5,  decided 
by  Lord  Nottingham,  and  said   to  have   been   the   first   after  the   statute   in 
which  the  doctrine  was  applied,   there  was  a  loan  of  money  on  a  niortgagu 
to  be  executed  in  the  form  of  an  absolute  conveyance  by  the  mortgagor,  and 
a  defeasance  by  the   mortgagee,  the  latter  \-erbally  agreeing  to  give  back  flu- 
defeasance.     Having  obtained  the  absolute   conveyance,   the  creditor  refused  to 
execute  and  deliver  the   defeasance  as  he  had  promised,  and  relied   upon  the 
statute.     He   was,    however,    decreed   to  execute  according   to   his   agreement, 
which  was  taken  out  of  the  statute   by  reason  of  his  fi-aud.     His  fraud  did  not 
consist  simply  in  refusing  to  carry  out  his  verbal  promise,  but  in  the  whole  con- 
trivance by  which  the  plaintiff  was  cheated  out  of  his  property.     In  Pember  v. 
Mathers,  1  Bro.  C.   C.   52,   Lord  Thurlow  said,    "  that  where  objection  is  taken 
before  the  party  executes  an  agreement,  and  the  othei-  side  promises  to  rectify  it, 
it  is  to  be  considered  fraud  on  the    i)arty   if  su(;h  promise  is  not  kept."     And  see 
Clarke  v.  Grant,  14  Ves.  525,  per  Sir  William  Grant  ;  Colyer  v.  Clay,  7  Bev.  188. 
In  Finucane  v.   Kearney,  1  Freeman,   65,  69,  it  was  said  :   *'An  acknowlctlged 
exception  to  the  statute  is  where  the  agreement  is  intended  to  be  reduct-d  to 
writing,  according  to  the  statute,  but  is  prevented  by  the  fraud   of  one  of  the 
parties.     And  so  I  apprehend  the  rule  would  be  where,  as  in  this  case,  the  con- 
tract was  written  out  and  one  of  the  parties  promised  to  sig)i   it,   but  was  pre- 
vented by  inevitable  accident.     It  is  the  peculiar  province  of  courts  of  equity  to 
relieve  again.st  accident  as  well  as  fraud  "     S.  P.,  in  Bern.-wd  /".  Flinn.  8  Ind.  204. 
See,  -aXao,  Childprs  r.   Childers.   1    D<'G.   &  J.  482;  Davi.-s   /•.   Otty.  35  B.'v.  208; 
Murphy  v.  Hubert,  4  Harris,  50;  7  Barr.  420;  Wolford  i\  Herrington,  24  P.  F. 
Smith,  311 ;  Collins  v.  Tilloiu  26  Conn.  368  ;  Brown  v.  Lynch,  1  Paige,  147  ;  Sweet 

209 


204  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

of  the  parties  has  been,  through  the  other's  fraud,  induced  to  forego 
a  written  contract,  or  a  formal  ante-nuptial  settlement. (1) 

iSec.  144.  The  principle  is  also  applied,  under  certain  circumstances, 
to  the  case  of  wills,  which  the  English  statute  of  frauds  requires  to  be 

n.  Jacocks,  6  Paige,  355  ;  Kennedy  v.  Kennedy,  2  Ala.  571  ;  Ti-apnall  v.  Brown, 
19  Ark.  89,  49 ;  Shields  v.  Tramniell,  19  Ark.  51 ;  Martin  v.  Martin,  6  B.  Mon.  8 ; 
and  compare  Blodgett  v-  Hildi-eth,  103  Mass.  484  ;  "Walker  v.  Locke,  5  Cusli.  90  ; 
[Leggett  V.  Leggett,  88  N  C  108].  In  Taylor  v  Luther,  2Sumn.  228,  Mr.  Justice 
Story  laid  down  the  general  doctrine  in  a  very  broad  manner,  which  perhaps 
requires  some  limitation. 

(1)  Dundas  v.  Dutens,  1  Ves.  196 ;  Cookes  v  Mascall,  2  Vern.  200  ;  Mont- 
acute  V.  Maxwell,  1  Eq.  Cas.  Abr.  19;  Prec.  Ch  528;  Ballet  v.  Halfpenny, 
2  Vern.  373  ;  1  Eq.  Cas  Abr.  20,  pi.  6  ;  Bawdes  v.  Amhurst,  Prec.  Ch  404  ; 
[and  see  McAnnulty  v.  McAnnulty,  120  111.  26].  In  Dundas  v.  Dutens,  supra. 
Lord  Thitrlow  went  to  the  extent  of  expressing  an  opinion  that  whenever  the  hus- 
band makes  a  pai'ol  agreement  to  settle,  and  then  the  marriage  takes  place  in 
reliance  upon  it,  he  should  be  compelled  to  perform.  This  case  certainly  carries 
the  doctrine  to  an  extreme  length,  and  its  correctness  has  been  doubted.  See 
"Warden  v.  Jones,  23  Beav.  487.  In  Cookes  v.  Mascall,  a  marriage  had  been 
arranged  between  plaintiff  and  defendant's  daughter,  and  a  certain  settlement  had 
been  agreed  upon ;  a  solicitor  on  behalf  of  plaintiff  was  drawing  up  a  settlement 
in  accordance  with  this  agreement ;  some  disagreement  arose  respecting  the  draft 
of  the  settlement ;  plaintiff  was,  however,  allowed  to  continue  his  visits  as  before, 
and  the  man-iage  took  place  with  defendant's  knowledge  and  approval,  he  seeing 
the  couple  off  in  the  morning,  and  receiving  and  entertaining  them  on  their  return 
home.  On  his  refusal  to  execute  the  settlement,  the  suit  was  brought,  which 
resulted  in  a  decree  ordering  him  to  execute  the  contract  as  it  had  been  drawn 
up  by  the  solicitor.  The  whole  proceedings  of  the  defendant  were  manifestly  a 
fraudulent  contrivance  to  consummate  the  marriage,  without  the  settlement  which 
he  had  agreed  to  make  in  consideration  thereof,  and  the  decision  was  based  upon 
such  fraud.  In  Montacute  v.  Maxwill,  as  reported  in  1  Eq.  Cas.  Abr.  and  Prec. 
Ch.,  the  defendant  had  promised  the  plaintiff  to  settle  his  property  upon  her  for 
her  separate  use,  and  gave  instructions  to  have  a  settlement  drawn  up  for  that 
pui'pose.  He  then  privately  countermanded  the  instructions ;  and  on  the  wed- 
ding day,  the  papei-s  not  being  ready,  defendant  begged  that  the  marriage  should 
go  on,  since  his  friends  wei-e  all  present,  and  it  would  shame  him  if  the  wedding 
was  put  off ;  and  he  promised  that  she  should  have  the  same  advantage  of  the 
agreement  as  if  it  had  been  in  writing  and  properly  executed.  Relying  on  these 
I'epresentations,  she  consented  to  the  marriage,  but  after  it  was  consummated,  he 
refused  to  carry  out  his  agreement.  On  these  facts,  he  was  decreed  to  execute 
the  settlement,  the  lord  chancellor  stating  the  rule  to  be,  that  if  parties  rely 
wholly  upon  the  parol  agremeent,  neither  can  compel  the  other  to  a  sjjecific  per- 
formance, for  the  statute  is  directly  in  the  way  ;  but  that  if  there  is  an  agreement 
for  reducing  the  same  to  writing,  and  that  is  prevented  by  the  fraud  and  practice 
of  the  other  party,  the  court  would,  in  such  a  case,  give  relief — as  where  instruc- 
tions were  given  for  the  drawing  up  of  a  settlement,  and  before  it  was  completed, 
the  woman  was  drawn  in,  by  the  assurances  and  promises  of  the  man  to  jierform 
it,  to  marry  without  a  settlement.  In  this  case,  the  secret  countermanding  of  the 
instructions  publicly  given  to  the  solicitor,  clearly  showed  a  fraudulent  scheme  on 
the  husband's  part,  from  the  beginning  of  the  negotiations,  to  entrap  his  wife  into 
a  mari'iage,  without  securing  to  her  the  separate  use  of  her  own  property.  In 
Mallet  V.  Halfpenny,  supra,  defendant,  in  a  negotiation  for  the  man-iage  of  his 

210 


FART  rKRFOUMANCE.  205 

in  writing.  It  is  a  settled  rule,  that  if  a  party  prevents  a  testator 
from  making  an  intended  devise  in  favor  of  a  third  person,  and  i)ro- 
cures  a  devise  directly  to  himself,  by  representations  and  assurances 
that  he  will  carry  out  the  original  purpose  of  the  testator,  and  apply 
the  gift  for  the  benefit  of  the  person  who  would  otherwise  have  been 
the  recipient  of  the  bounty,  equity  will  iivforce  such  promise,  by  hold- 
ing that  a  trust  arises  out  of  the  fraud  of  the  actual  devisee,  and  by 
compelling  him  to  execute  the  trust  in  favor  of  the  third  person. (1) 
This  doctrine,  it  would  seem,  should  also  be  applied  to  contracts 
where  the  intention  of  one  party  towards  the  other  has  been  frus- 
trated, or  prevented  from  being  carried  into  effect,  by  the  fraudulent 
interference,  representations,  or  concealments  of  third  persons. (2)  It 
is,  at  all  events,  a  well-settled  doctrine  of  equity,  notwithstanding 
the  statute  of  frauds,  or  the  American  statutes  relating  to  wi41s  and 

daughter  with  the  plaintiff,  signed  a  written  agreement  containing  a  settlement 
upon  the  intended  husband  and  wife.  Afterwards,  and  before  the  wedding,  and 
for  the  purpose  of  escaping  from  his  contract,  he  directed  his  daughter  to  put  on 
A  good  humor  and  get  tlie  plaintiff  to  deliver  up  the  writing  to  her,  and  then  to 
marry  him.  By  this  means,  the  defendant  got  possession  of  the  agi-eement,  and 
the  marriage  took  place  ;  but  the  court  decreed  an  execution  of  it. 

(1)  Podmore  v.  Gunning,  7  Sim.  644,  and  cases  cited;  Chester  v.  Urwick,  23 
Beav.  407  ;  Harris  v.  Horwell,  Gilb.  Eq.  11 ;  Devenish  v.  Baines,  Prec.  Ch.  3 ; 
Oldham  v.  Litchfield,  2  Vern.  506 ;  Thynn  v.  Thynn,  1  Vern,  296 ;  Chamber- 
laine  v.  Chamberlaine,  2  Freem.  34  ;  2  Eq.  Cas.  Abr.  43 ;  Prec.  Ch.  4.  (Williams 
V.  Vreeland,  29  N.  J.  Eq.  417 ;  Knox  v.  McFarren,  4  Colo.  586.  J  In  Podmore 
V.  Gunning,  the  testator  bequeathed  his  estate  to  his  wife  absolutely.  After 
her  death,  two  natural  daughters  proved  a  parol  promise  by  the  \vife  made 
to  the  testator,  that  after  her  decease  the  residuary  estate  should  go  to  them. 
The  court,  upon  the  proof  of  this  promise,  granted  them  the  relief,  and  enforced 
the  promise.  The  will,  however,  contained  the  following  clause,  which  seemed 
to  refer  to  some  such  arrangement:  " Having  a  perfect  confidence  that  she  (the 
wife)  would  act  up  to  those  views  which  he  had  communicated  to  her,  in  the  ulti- 
mate disposal  of  his  property  after  her  decease." 

(2)  In  Lester  -o.  Foxcraft,  Colles  P.  C.  108 ;  2  Vern.  456 ;  Prec.  Ch.  519,  526,  a 
person  had  agreed  to  give  jjlaintiff  a  lease  of  certain  lands,  who,  relying  thereon, 
had  taken  possession  and  made  valuable  improvements ;  the  owner  was  anxious, 
when  near  his  death,  to  execute  the  lease  according  to  his  agreement,  but  was 
prevented  by  the  fi-audulent  practices  of  his  relatives  from  seeing  the  jjlaintiff, 
and  actually  died  without  performing.  These  relatives  who  succeeded  to  the  estate 
were  compelled,  by  a  decree  in  equity,  to  specifically  perform  the  contract.  It  is 
true  that  the  decision  was  mainly  i-ested  upon  the  fact  of  a  part  performance  by 
the  plaintiff,  and  the  case  is  generally  regarded  as  the  leading  one  in  sui>port  of 
that  doctrine.  But  if  there  had  been  no  part  performance,  the  fraudulent  contri- 
vances and  practices  of  the  defendants  would  have  furnished  a  sufficient  ground 
for  granting  the  relief.  See,  also.  Story  Eq.  Jur.  §  768 ;  Chainbei-lain  v.  Agar,  2 
V.  &  B.  262;  Mestaer  v.  Gillespie,  11  Ves.  638;  Stickland  v.  Albridge.  9  Vea 
519  ;  Dixon  v.  Olmius.  1  Cox.  414 ;  Reach  v.  Kennegal,  1  Ves.  Sen.  123 ;  Sellack  V. 
Harris.  5  Vin.  Abr.  521. 

211 


206  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

the  mode  of  raising  trusts,  that  wherever  a  person  acquires  the  le^l 
title  to  lands  by  means  of  a  verbal  promise  to  hold  them  for  a  certain 
specified  purpose — as,  for  example,  a  promise  to  convey  them  to  a  desig- 
nated individual,  or  to  reconvey  them  to  the  grantor,  and  the  like  ; 
and  having  thus  obtained  the  title  fraudulently,  retains,  uses  and 
claims  the  lands  as  absolutely  his  own,  so  that  the  whole  transaction, 
by  means  of  which  the  owner&hip  was  obtained,  is  based  upon  deceit, 
and  is,  in  fact,  a  scheme  of  actual  fraud ;  such  party  is  regarded  as 
holding  the  lands  charged  with  an  implied  trust  arising  from  his 
fraud,  and  he  will  be  compelled,  by  a  court  of  equity,  to  execute  this 
trust  by  performing  his  engagement,  and  by  conveying  the  estate  in 
accordance  with  his  promise.  The  statutory  requirement  that  a  trust 
must  be  created  by  a  written  instrument,  does  not  apply  to  such  a 
case,  since  trusts  ex  maleficio  are  either  expressly  or  tacitly  excepted 
from  its  provisions. (1)     In  order,  however,  that  the  general  doctrine 

(1)  Hunt  V.  Roberts,  40  Me.  187;  Hodges  v.  Howard,  5  R.  I.  149;  Fraser  v. 
Child,  4  E.  D.  Smith,  153;  Hog-e  v.  Hoge,  1  Watts,  214;  Cousins  v.  Wall,  3  Jones 
Eq.  43  ;  Cameron  v.  Ward,  8  Geo.  245  ;  Jones  v.  McDougal,  32  Miss.  179  ;  Martin 
V.  Martin,  16  B.  Mon.  8 ;  Arnold  v.  Cord,  16  Ind.  177  ;  Nelson  v.  Worrall,  20  Iowa» 
469  ;  Coyle  v.  Davis,  20  Wise.  593  ;  Hidden  v.  Jordan,  21  Cal.  92  ;  Sandfoss  v.  Jones, 
35  Cal.  481 ;  Laing-  v.  McKee,  13  Mich.  124.  This  doctrine  is  often  used  with 
ealutary  efficacy  in  cases  where,  at  an  execution  sale,  or  sale  under  a  mortgage 
foreclosure,  or  other  similar  public  sale,  a  party  buys  in  the  land  under  a  prior 
promise  made  to  the  execution  or  mortgage-debtor  or  other  interested  owner,  that 
he,  the  purchaser,  will  take  the  title  and  hold  the  land  for  the  benefit  of  such 
owner,  and  will  reconvey  to  him  on  being  repaid  the  amount  advanced  for  the 
purchase-price,  and  having  thus,  by  fraudulent  contrivance,  cut  off  competition, 
and  obtained  the  projierty  for  perhaps  less  than  its  value,  refuses  to  keep  his. 
promise,  and  retains  the  land  as  absolutely  his  own.  Equity  will  interfere  on 
behalf  of  the  defrauded  owner,  and  compel  a  conveyance  in  accordance  with  the 
trust  ex  tnaleficio.  Rose  v.  Bates,  12  Mo.  30 ;  Moore  v.  Tisdale,  5  B.  Mon.  352  j 
Letcher  v.  Crosby,  2  A.  K.  Marsh.  106  ;  McCulloch  v.  Cowher,  5  Watts  &  S. 
430 ;  Kisler  v.  Kisler,  2  Watts,  323 ;  Schmidt  v.  Gatewood,  2  Rich.  Eq.  162 ; 
Green  v.  Ball,  4  Bush.  586.  In  the  very  recent  case  of  Dodd  v.  Wakeman,  11  C. 
E.  Green,  484,  the  court  said  the  rule  is  settled  (at  least  in  New  Jersey),  that 
a  parol  contract  to  purchase  land  at  a  sheriff's  sale  for  the  benefit  of  the  execu- 
tion debtor,  and  that  he  shall  have  a  conveyance  of  it  on  reimbursing  the  pur- 
chaser, will  be  enforced  in  equity,  even  if  free  from  fraud,  unless  the  statute  of 
frauds  is  properly  pleaded  by  way  of  defense  (citing  Combs  v.  Little,  3  Green  Ch. 
310  ;  Marlatt  v.  Warwick,  3  C.  E.  Green,  109,  4  ib.  441  ;  Merritt  v.  Brown,  6  C.  E. 
Green,  404).  And  even  where  defendant  pleads  the  statute,  if  it  clearly  appears 
that  he  has  made  use  of  such  contract,  or  any  other  contrivance,  to  obtain  the 
property  for  an  inadequate  price,  or  to  the  oppression  of  the  execution  debtor,  a 
court  of  equity  must  grant  the  relief  (citing  Walker  v.  Hill's  Ex'ors.  7  C.  E. 
Green,  519  ;  Meri-itt  v.  Brown,  6  C.  E.  Green,  404).  In  Ryan  v.  Dox,  34  N.  Y. 
307,  the  doctrine  of  the  text  is  fully  supported  by  the  New  York  court  of  appeals, 
after  an  elaborate  examination  of  the  avithorities  and  discussion  of  the  principles. 
212 


THF.    <'0.\TliA('T    MIST   Ji  K    ( DM  1' h  Kl  K.  207 

above  s>tated  can  be  eiiturced  under  iiny  ciirmustaiice.s,  there  must,  be 
sometliing  more  tluiu  a  mere  verbal  pruuiise,  however  uuecjuivocal, 
otherwise  the  statute  would  be  virtually  abrogated  ;  there  must,  be  an 
element  of  actual,  positive  fraud  acc()mi)anying  tiie  priaaise,  and  by 
means  of  which  the  acquisition  of  the  legal  title  is  w'rongfuUy  con- 
summated. i-Cquity  does  not  pretend  to  enforce  verbal  ]»romises  in 
the  face  of  tlie  statute;  it  endeavors  to  prevent  and  punish  fiaud,  by 
taking  from  the  wrong-doer  the  fruits  of  his  (h'ceit,  and  it  accom- 
plishes this  object  by  its  beneficial  and  far-reaching  doctrine  of 
implied  trusts.(l) 


SECTION  V. 

The  contract  mtist  be  complete. 

Section  145.  It  ^  an  elementary  doctrine  of  the  courts  of  equity 
that  they  will  not  specifically  enforce  any  contract  unless  it  be  com- 
plete and  certain. (2)     In  the  discussions  of  the  present  and  next 

This  decision  is  not  in  the  least  shaken  by  the  subsequent  case  of  Levy  v.  Bcush, 
45  N.  Y.  589,  which  is  clearly  distinguishable  upon  the  facts,  and  which  expressly 
acknowledges  the  correctness  of  the  former  decision.  See,  also,  the  very  late  case 
of  Wheeler  v.  Reynolds,  G(i  N  Y.  227,  which  fully  discusses  the  doctrine  and  its 
limitations. 

(1)  Leman  r  Whitley,  4  Russ,  423  ;  Barnet  v.  Dougherty,  32  Pa.  St.  372 ;  Pat- 
tison  v.  Horn,  1  Grant  (Pa.),  301;  Hogg  v.  Wilkins,  1  Grant,  (37;  Campbell  v. 
Campbell,  2  Jones  Et^.  364 ;  Chambliss  v.  Smith,  30  Ala.  300 ;  Whiting  v.  Gould, 
2  Wise.  404;  Farnham  v.  Clements,  51  Me.  426;  Levy  V.  Brush,  45  N.  Y.  589. 

(2)  Buxton  V.  Lister,  3  Atk.  380,  per  Lord  Hardwicke  :  "  Nothing  is  more 
established  in  this  court  than  that  every  agreement  of  this  kind  ought  to  be  cer- 
tain, fair,  and  just  in  all  its  parts.  If  any  of  those  ingredients  are  wanting  in  the 
case,  this  court  will  not  decree  a  specific  performance."  Lord  Walpole  v.  Lord 
Orford,  3  Ves.  420,  per  Lord  Rosslyn  :  "  I  lay  it  down  as  a  general  projiosition,  to 
which  I  know  no  limitation,  that  all  agreements,  in  order  to  be  executed  in  this 
covirt,  must  be  certain  and  defined  ;  secondly,  they  nuist  be  ecpial  and  fair,  for 
this  court,  unless  they  are  fair,  will  not  execute  them  ;  and  thirdly,  they  must  be 
proved  in  such  manner  as  the  law  requires."  See  Underwood  i\  Hitclicox,  1  Ves. 
Sen.  279 ;  Franks  v.  Martin,  1  Ed.  309.  [See,  also,  Pi-e.'^ton  v.  Preston,  95  U.  S. 
200 ;  Fowler  v.  Marshall,  29  Kan.  605 ;  Moyer's  Appeal,  105  Pa.  St.  432  ;  Wood- 
bury V.  Gardner,  77  Me.  68  ;  Simon  v.  Wild,  84  Kan:  157.]  For  examples  of  the 
kinds  of  contracts  which  cannot  be  specifically  executed  by  a  court  of  e(iuity, 
becausi!  of  their  incompleteness,  see,  where  the  negotiation  wjis  not  ended,  Hon- 
eyman  v.  Maryatt,  21  Beav.  14  ;  6  H,  L.  Cas.  112  ;  Stratfoi-d  v.  Bosworth,  2  V.  & 
B.  341  ;  Tawney  v.  Crowther,  3  Bro.  C  C.  318.  Where  it  is  only  the  Ija.^ia  of  an 
agreement,  and  not  the  agreement  itself.  Frost  r.  Monlton,  21  Beav.  596  ;  Losee 
-y.  Morcy,  57  Barb.  561.  Where  it  provides  that  one  or  more  of  the  tei-ms  are  to 
be  settled  afterwards,  Wood  v.  Midgley,  5  Dc^G.  M.  &  G.  41.  [Brown  v.  Brown, 
33  N.  J.  Eq.  650 ;  Telegraph  Co.  j«.  Teie))hone  Co..  39  N.  .1.  Ivp  160  ;  Litterall  v. 
Jackson,  80  Va  604.]  Where  the  arrangement  is  still  in  abeyance,  and  one  pai-ty 
may  still  withdraw  his  consent,  Lord  Glengal  v.  Barnard,  1  Ke.  769  ;  Johnson  t>. 
Johnson,  10  Minn.  512  (a  mere  understanding  but  no  definite  contract). 

213 


208  SPECIFIC   PElilOUMASCE    OF  CONTRACTS. 

succeeding  section,  the  element  of  completeness  denotes  that  the  con- 
tract embraces  all  the  material  terms  ;  that  of  certainty  denotes  that 
each  one  of  these  terms  is  expressed  in  a  sufficiently  exact  and  definite 
manner.  An  incomplete  contract,  therefore,  is  one  from  which  one 
or  mn;e  material  terms  have  been  entirely  omitted.  An  uncertain 
contract  is  one  which  may  indeed  embrace  all  the  material  terms,  but 
one  or  more  of  them  is  expressed  in  so  inexact,  indefinite,  or  obscure 
language,  that  the  intent  of  the  parties  cannot  be  sufficiently  ascer- 
tained to  enable  a  court  to  carry  it  into  effect.  The  former  of  these 
qualities  is  the  subject-matter  of  the  present  section.  This  element 
of  completeness  must  exist  in  every  contract  which  can  be  specifically 
enforced,  whatever  be  its  external  form,  whether  written  or  verbal, 
whether  embodied  in  the  memorandum  required  by  the  statute  of 
frauds,  or  rendered  obligatory  by  part  performance,  or  by  any  other 
mode  which  may  obviate  the  prohibitions  of  that  statute.  It  siiould 
be  observed,  however,  that  the  completeness  here  spoken  of,  although 
quite  analogous  to,  is  really  more  extensive  and  embracing  more  par- 
ticulars than  that  which,  we  have  seen,  must  be  found  in  the  note  or 
memorandum  of  the  agreement  mentioned  in  the  statute  of  frauds, 
since  it  must  extend  to  the  entire  contract.  In  order  that  any  agree- 
ment, whether  covered  by  the  statute  or  not,  whether  written  or 
verbal,  may  be  specifically  enforced,  it  must  be  complete  in  all  its 
parts ;  that  is,  all  the  terms  which  the  parties  have  adopted,  as  por- 
tions of  their  contract,  must  be  finally  and  definitely  settled,  and  none 
must  be  left  to  be  determined  by  future  negotiation ;  and  this  is  true 
without  any  regard  to  the  comparative  importance  or  unimportance 
of  these  several  terms.  The  element  of  completeness  necessarily 
includes  all  the  terms  which  are  stated  in  the  memorandum,  but  it 
may  extend  beyond  this  evidentiary  writing,  and  it  applies  to  all  the 
contract,  whether  embraced  in  the  memorandum  or  not.  It  should 
also  be  remarked,  before  proceeding  with  the  discussion,  that  when  a 
contract  has  been  partly  performed  by  the  plaintiff,  and  the  defend- 
ant has  received  and  enjoys  the  benefits  thereof,  and  the  plaintiff 
would  be  virtually  remediless  unless  the  contract  were  enforced,  the 
cour.',,  from  the  plainest  considerations  of  equity  and  common  justice, 
does  not  regard  with  favor  any  objections  raised  by  the  defendant 
merely  on  the  ground  of  the  incompleteness  or  uncertainty  of  the 
agreement.  Even  if  the  agreement  be  incomplete,  the  court  will  then, 
in  furtherance  of  justice  and  to  prevent  a  most  inequitable  result, 
decree  a  performance  of  its  terms  as  far  as  possible,  although,  perhaps, 
with  compensation  or  allowance.  In  fact,  as  has  been  shown  in 
214 


77/ A'    VONTHAVT  MUST   BE    COMPLETE.  2()'.> 

chapter  1.  one  frrotind  of  tlie  cquitablo  jurisdiction  to  decree  a  specilir 
perfuriuance  is  the  incompleteness  of  the  contract,  which  would  pn-- 
vent  an  action  at  law,  but  which  exists  to  such  a  limited  extent  and 
under  such  circumstances  that  a  refusal  to  grant  any  relief  would  Ix- 
plainly  inequitable. (1) 

yEC.  146.  In  discussing  the  element  of  completeness,  a  contract 
may  be  considered  in  reference  to  the  following  particulars:  1.  The 
parties.  2.  The  price.  3.  The  subject-matter.  4..  The  promises  and 
other  miscellaneous  terms,  and  the  whole  subject  will  be  presented  in 
a  clearer  light,  if  the  decisions  are  examined  and  arranged  in  accord- 
ance with  these  divisions. 

Sec.  147.  I.  The  parlies. — There  can  be  no  complete  contract  unless 
the  parties  are  known  and  determined ;  they  are  essential  to  the  very 
conception  of  a  binding  agreement.  The  rule  is  a  general  one  that 
their  names  must  appear  in  the  contract,  or  on  the  face  of  it,  as  the 
contracting  parties.  When  the  agreement  is  verbal,  and  is  therefore 
proved  by  parol  evidence,  there  cannot,  from  the  nature  of  the  case, 
be  any  real  doubt  or  ditficulty  if  a  contract  has  actually  been  made  ; 
for  the  disclosure  of  the  parties  is  necessarily  involved  in  the  proof  of 
the  contract  itself.  The  rule,  in  its  general  form,  applies  as  well  to 
written  agreements,  which  must  state  the  parties,  either  by  name  or 
by  sufficient  description.(2)  Under  this  general  rule,  however,  espe- 
cially when  applied  to  a  written  contract,  there  arise  several  subordi- 
nate questions,  namely :  when  and  to  what  extent  does  the  name  of 
an  agent  appearing  alone  in  the  agreement ,  as  a  party  thereto,  take 
the  place  of  the  principal  and  satisfy  the  demands  of  the  rule  itself  ? 
How  far  is  a  description  of  a  party  by  his  title,  office,  or  otherwise, 
instead  of  his  name,  a  sufficient  compliance  with  the  rule  ?  To  what 
extent  is  extrinsic  evidence  admissible  to  identify  the  party  who  is 
simply  described  or  indicated  in  any  manner  other  than  by  giving 
his  name  ?  Is  it  necessary,  in  a  contract  of  sale,  assignment,  leasing 
and  the  like,  whereby  a  right  or  interest  is  transferred,  to  indicate  on 
the  face  of  the  writing  which  of  the  parties  is  the  vendor,  assignor  or 
lessor,  and  which  the  vendee,  assignee  or  lessee ;  and,  in  the  absence 
of  such  express  indication  in  the  language  of  the  instrument,  can 
parol  evidence  be  used  in  order  to  fix  the  proper  characters  in  this 
respect  upon  the  several  parties  ?  As  these  questions  have  just  been 
examined  and  answered,  and  the  cases  furnishing  their  solution  have 

(1)  See  ante,  §  33. 

(2)  Warner  v.  Willing-ton,  3  Drew,  523;  Squire  ri.  Whitton,  1  H.  L.  Cas.  333; 
Champi.m  v  Plummcr,  1  13.  &  P.  (N.  R.)  253;  Stantcn  r.  Mill.-r,  5S  N.  Y.  192; 
[Los  Ang-elcs  Iminiiri-ation,  etc..  Assoc,  v  Phillips,  .'50  Cal.  539  ;  Ellsworth  i'.  1-lan- 
dall,  (Iowa)  4ii  N.  W.  R.'i).  (529.] 

215 


210  SPECIFIC   PERFORMANCIC    OF   COM li ACTS. 

just  been  cited  in  the  })receding  section  which  treats  oi  the  memoian- 
diiiu  required  by  the  statute  of  frauds  ;  and  as  the  same  conclusions 
must  apply  to  all  written  agreements,  it  would  be  a  useless  repetition 
to  go  over  the  same  ground  again,  and  the  reader  is  referred  to  the 
discussion  at  the  place  mentioned.(l) 

Sec.  148.  11.  The  Price. — In  all  contracts  of  sale,  assignment,  and 
the  like,  the  price  is,  of  course,  a  material  term.  It  must  either  be 
fixed  by  the  agreement  itself,  or  means  must  be  therein  provided  for 
ascertaining  it  with  certainty.  In  the  absence  of  such  provision, 
either  stating  it  or  furnishing  a  mode  for  fixing  it,  the  agreement 
would  be  plainly  incomplete,  and  could  not  be  euforced  ;  and  if  the  con- 
tract is  written,  this  term  must  appear  in  the  memorandum  or  writ- 
ten instrument. (2)     This   rule,   of  course,    does  not  apply   to   gifts, 


(1)  Seea?iie,  §§75,  8S.  S9 

(■2)  Clerk  v.  Wrig-ht,  1  Atk.  12;  Bromley  v.  Jefferies,  2  Vern.  415  ;-Elniore  v. 
Kingscote,  5  B.  &  C.  5S3 ;  Goodman  v.  Griffiths,  26  L.  J.  Ex.  145  ;  Pi-eston  v. 
Merceau,  2  W.  Bl.  1249;  Blagdeii  o.  Bradbear,  12  Ves.  466  ;  Hopcraft  v.  Hick- 
man, 2  S.  &  S.  130  ;  Chichester  v.  M'Intyre,  4  Bli.  (N.  S.)  79  ;  Powell  v.  Love- 
g-rove,  39  Eng.  L.  &  Eii.  427  ;  and  see  cases  cited  under  §  94  ;  [also,  Williams  v. 
Morris,  95  U.  S.  444  ;  Burkhalter  v.  Jones,  32  Kan.  5.]  As  illustrations,  in  Brom- 
ley V.  Jeffries,  siqwa,  an  agreement  to  sell  an  estate  to  the  vendee  named,  "for 
500Z.  less  than  any  other  purchaser  would  give,"  was  held  incomplete,  since  it 
.stated  no  price  nor  furnished  any  certain  means  of  ascertaining  it,  consistent 
with  the  terms  of  the  contract  itself.  Plainly  it  would  be  impossible  to  find  out 
how  much  any  other  purchaser  would  give  without  entering  into  a  coutr.act  of 
sale,  at  least  verbal,  with  some  person  ;  and  that  being  done,  it  would  be  grossly 
ineqm'table  io  abandon  that  bargain  for  the  sake  of  carrying  into  effect  the 
one  in  suit.  [See  also,  the  similar  case  of  Hayes  v.  O'Brien,  (111.)  26  N.  E.  601.] 
In  Hopcraft  v.  Hickman,  supra,  the  contract  was  to  sell  at  a  price  to  be  fixed  by 
two  valuers,  who  made  an  award  but  did  not  finally  and  definitely  fix  upon  any 
price,  and  a  specific  performance  was  therefore  refused.  In  Chicester-y.  M'In- 
tyre, supra,  the  conti-act  contained  the  same  provision  as  to  the  price  ;  but  in 
making  their  awa;rd,  one  of  the  arbitrators  was  guilty  of  very  wrongful  conduct, 
and  their  decision  was  plainly  erroneous ;  the  court,  therefore,  refused  to  be 
governed  by  it,  or  to  enforce  the  agreement.  The  rule  given  in  the  text  includes 
that  already  stated  concerning  the  memorandum  required  by  the  statute  of 
frauds,  but  is  broader  in  its  application,  since  it  extends  to  all  contracts  verbal 
or  written.  The  following  cases  furnish  additional  illustrations  of  the  rule  as 
stated  in  the  text:  Hufft?.  Shepard,  58  Mo.  242,  stipulation  in  a  land  contract 
that  the  price  shall  be  paid  "on  such  terms  as  may  be  agreed  iipon  between  said 
parties,"  held  to  render  the  agreement  incomplete  ;  Potts  v.  Whitehead,  5  C.  E. 
Green,  lb,  astipulation  fixing  the  price,  and  providing  that  a  certain  portion  was 
to  be  paid  on  the  execution  of  the  deed,  and  the  residue  was  to  be  secured  by  a 
bond  and  mortgage  on  the  land  at  six  per  cent  interest,  without  any  pi-ovision 
for  the  time  of  payment  of  the  portion  so  secured,  held  to  render  the  contract  too 
incomplete  for  enforcement.  The  various  provisions  of  the  contract  plainly  re- 
butted the  implication  that  the  balance  was  to  be  paid  immediately,  which  some- 
times arises  when  no  time  is  specified.  Mastin  v.  Halley,  61  Mo.  196,  in  a  con- 
tract to  convey  land,  the  only  consideration  named  was,  that  the  vendee  should 

216 


THE    COXTh'ACT  Ml'ST   UK    COMPLETE.  211 

which,  under  certain  circumstances  of  parol  performance  by  the 
donee,  will,  as  has  ah-eady  been  shown,  be  enforced  by  courts  of 
equity. (I)  There  is  an  apparent  but  not  real  exci^ption  to  this  gen- 
eral proposition.  A  valid  contract  of  sale  may  be  mach)  without  any 
stipulation  as  to  the  price,  the  law  in  such  case  implying  that  the 
price  is  the  reasonable  value  of  the  thing  whicli  is  tlie  sul)ject-matter 
of  the  agreement.  Thi,s  is,  however,  no  exception  to,  but  rather  a 
special  instance  of,  the  foregoing  rule  ;  because  such  a  contract  does, 
in  fact,  by  operation  of  the  hiw,  furnish  a  means  of  exactly  ascer- 
taining and  fixing  the  price. (2) 

When  the  contract  provides  a  means  for  fixing  the  price. 

iSec.  149.  The  case  in  whicli  the  contract  does  not  itself  fix  upon 
the  price,  but  furnishes  a  method  by  which  the  price  shall  be  deter- 
mined, requires  a  special  consideration.  There  may  be  various  such 
modes.  The  price  may  be  left  to  the  action  of  certain  persons  as 
valuers  or  arbitrators; (3)  or  it  may  be  referred  to  and  depend  upon 
some  past  or  future  event — as,  for  example,  it  may  be  the  amount  for 
which  the  property  was  sold  at  a  former  time,  to  be  ascertained  by 
extrinsic  evidence. (4)  It  is  a  settled  doctrine,  that  whenever  the 
price  is  thus  made  to  depend  upon  the  decision  of  valuers,  or  upon 
any  other  future  action  or  event,  the  contract  is  not  completed,  and 
will  not  be  enforced  until  the  price  has  been  actually  iixed  in  the 
manner  provided,  or  in  some  other  equivalent  manner  satisfactory 
to  the  court.  A  decree  of  specilic  performance  will  never  be  made, 
ordei'ing  payment  of  such  an  amount  as  certain  arbitrators  may 
thereafter  award ;  the  decision  nnist  precede  the  decree. (.5)  The 
provision  not  infrequent  in  contracts  of  sale  or  leasing,  whereby  the 
determination  of  the  pripe  is  referred  to  arbitrators,  or  is  made  to 
depend  upon  some  future  action  of  third  person,  or  ui)on  other  future 

erect  "a  (;(M-tain  biiildiiiy"  theriiou,  without  further  ilesi-riptiou,  held  too  in<-oiii- 
plete  in  this  jtarticuhir  to  be  enforced.  Sj.ang-ier  v.  Danforth,  (if)  11).  Ivrl,  a  con- 
tract stating-  that  the  vendee  "agreed  to  take  the  pasture  lot  for  .'!^2,4(M).;  .^1,000 
ca-;h.  .'>400  December  1,  1871,  at  ten  })er  cent ;  $1,000  .July  1,  1872,  at  t<Mi  per  cent, 
to  be  secured  by  a  niortgag-e,"  held  sufficiently  detinite.  Grace  v  Denison,  114 
Mass.  116,  an  agreement  to  convey  land  "for  1^25,000,  and  mortgage  to  remain  at 
tive  per  cent,  for  ti\  e  years,"  held  incomplete.  Qiierij.  Why  did  not  this  clausi' 
i  mply  that  the  whole  ])rice  was  to  remain  cm  mortgage  for  the  live  yeai's  {  It  would 
th'm  lie  clea7-ly  complete  and  cei-tain  ;  and  this  appears  to  l)e  the  natural  meaning 
of  the  language.  [A  pi-ovision  in  a  liuise,  that  "if  the  ]iremises  nvt'.  for  sale  at 
any  time,  the  lessee  shall  have  the  i-efusal  of  them,"  is  too  indefinite  .-is  to  ju-ice. 
Fogg  0.  Prine,  145  Ma.ss.  513.  Foi-  instances,  where  the  contract  fuvnishes  the 
basis  for  comjniting  the  jirice,  sci»  Wilboui-n  i\  Bishop.  (\2  Miss.  Ml  :  McF.u-lane 
tJ.  Williams,  107  111.  38.  In  Everett  v.  Dilley,  89  Kan.  78,  where  nothing  was 
said  as  to  interest  on  nni)ai(l  pui-chas(!-money  or  as  to  taxes,  it  was  held  thit  the 
law  would  fix  both.] 

(1)  See  ante,  §  130. 

(2)  See  Hoadiv  v.  McLaine,  10  Bing.  482 

(8)  Cooth  V.  .Jackson,  (!  Ves.  12  ;  Bi-own  v.  Beliow.s,  4  Pick.  189. 

(4)  Atwood  ?'.  Col)]),  k;  Pick.  280. 

(5)  Darbey  v.  Whitaker,  4  Drew.  134. 

217 


212  SFtClFia   PEUFOKMANCE    OF   CONTRACTS. 

event,  has  given  rise  to  the  following  important  question,  namely, 
whether,  when  the  mode  pointed  out  by  the  contract  has  linally  failed 
from  the  inability  or  unwillingness  of  the  valuers  to  act,  or  from  the 
refusal  of  the  defendant  to  appoint  a  valuer  in  pursuance  of  his  stipu- 
lation, or  from  any  other  cause,  the  court  will,  in  a  suit  brought  to 
enforce  the  agreement  itself,  determine  the  price,  or  will  adopt  some 
other  mode  of  fixing  it  in  place  of  that  which  the  parties  chose,  and 
which  has  failed.  Such  action  by  the  court  would  not  be  a  step  in 
the  process  of  specifically  enforcing  the  contract,  although  undoubtedly 
somewhat  analogous  to  a  performance  ;  it  would  rather  be  a  proceeding 
for  completing  and  perfecting  the  contract,  so  that  it  might  afterwards 
be  enforced.  It  is  an  elementary  doctrine,  that  if  an  agreement  is 
left  by  the  parties  wholly  incomplete,  the  court  cannot. jjut  itself 
in  their  place,  and  make  a  contract  for  them.  The  decisions  which 
furnish  an  answer  to  the  question  above  stated,  turn  upon  this  fami- 
liar doctrine,  and  are  separated  into  two  classes  —  the  first  of 
which  includes  the  contracts  to  which  the  doctrine  applies  ;  the  second, 
those  to  which  it  does  not  apply.  These  two  groups  of  cases 
will  be  examined  separately. 

Sec.  150.  The  first  class  embraces  those  contracts  in  wnich,  by  the 
form  and  language  of  the  stipulation,  the  mode  of  determining  the 
price  by  arbitrators  or  valuers  is  made  an  essential  term — in  fact,  a 
condition  to  the  validity  of  the  agreement.  When  such  is  the  nature 
of  the  provision,  if  the  means  which  it  furnishes  for  ascertaining  the 
price  finally  fail  for  any  reason,  the  contract  itself  is  held  to  be 
incomplete,  and  because  the  term  which  has  thus  become  inoperative 
was  made  essential,  the  general  principle  above  cited  comes  into 
force,  and  prevents  the  court  from  making  a  new  contract  by  providing 
another  method  for  fixing  the  price,  and  as  a  result  a  specific  execu- 
tion is  refused.(l)     The  doctrine  has  even  been  applied  wiiere  the 

(1)  The  leading  case  on  the  subject  is  Milnes  \\  Gery,  14  Ves.  400,  in  which  the 
agreement  was  to  convey  land  at  a  price  to  be  fixed  by  two  valuers,  one  appointed 
by  each  party  or  by  their  umpire.  The  valuers  failed  to  agree,  and  Sir  William 
Grant,  M.  R.,  held  that  the  agreement  was  thus  rendered  incomplete,  and  the 
court  had  no  power  to  appoint  other  arbitrators,  or  to  fix  the  price  itself,  for  this 
would  be  to  make  a  contract  different  from  that  agreed  upon  by  the  parties  them- 
selves. This  case  has  been  approved  and  its  doctrine  followed  in  many  subse- 
quent ones,  nor  has  it  ever  been  repudiated  ;  although,  as  will  soon  be  shown, 
the  coui't,  in  the  most  recent  English  decisions,  has  declared  that  its  doctrine 
should  not  be  extended,  but  should  be  restricted  in  its  application  to  the  exact 
facts  ;  and  even  its  correctness  has  been  questioned.  In  Morse  v.  Merest,  6  Mad. 
26,  Sir  John  Leach  said  :  "  A  man  who  agreed  to  sell  at  a  price  to  be  named  by 
A.,  B.  and  C,  coulil  not  be  compelled  by  a  court  of  equity  to  sell  at  any  other 

218 


THE   CONTKACr  MUST  BE   COMPLETE.  213^ 

failure  to  determine  the  price  in  the  manner  agreed  was  the  result  of 
the  defendant's  intentional  act  or  omission — as,  for  example,  his 
refusal  to  appoint  one  of  the  arbitrators,  or  his  other  default.(l)  The 
correctness  of  this  application,  however,  may,  in  the  light  of  the 
recent  English  decisions  hereinafter  quoted,  be  well  doubted. 

Sec.  151.  The  second  class  embraces  those  contracts  in  which  a 
mode  for  ascertaining  thfe  price  is  nicntioned,  but  t'roiu  the  language 
of  the  stipulation  it  is  regarded  as  non-essential,  and  as  something 
rather  by  way  of  suggestion,  so  that  the  agreement  itself  is  virtually 
one  to  sell  for  a  fair  price.  In  such  a  case,  if  the  means  specified  for 
fixing  upon  the  price  fail  for  any  reason,  the  court  does  not  treat  the 
contract  as  fatally  defective  ;  but  will,  in  the  suit  for  a  specific  perform- 
ance, direct  a  fair  and  reasonable  price  to  be  ascertained  in  some 
manner  preliminary  to  the  decree,  either  by  referring  the  matter  to  a 
master  or  other  officer,  or  by  appointing  a  skilled  2)erson  as  a  special 
valuer,  or  even  by  determining  the  amount  itself;  it  will  pursue  any 

price."  See,  also,  Blundell  v.  Brettarg-h,  17  Ves.  232  ;  Gourlay  v.  Duke  of  Somer- 
set, 19  Ves.  429  ;  Agar  v.  Macklew,  2  S.  &  S.  418  ;  Daibey  v.  \Vhitak(M-,  4  Drew. 
134  ;  Morgan  v.  Birnie,  9  Bing.  672 ;  Thurnell  v.  Balbirnie,  2  M.  &  W.  78(J ; 
Milner  v.  Field,  5  Ex.  829  ;  [Wilbourn  v.  Bishop,  62  Miss.  341  ]  The  same  (hicti-iiie 
has  been  followed  in  this  country  In  Norfleet  v.  Southall,  3  Murpli.  180,  two  par- 
ties  built  a  mill  together.  A.  contracted  to  convey  his  half  to  B.  on  being  jiaid  its 
cost,  which,  it  was  further  agreed,  should  be  ascertained  by  certain  persons. 
These  valuers  could  not  agree  upon  any  amount,  and  A  would  not  consent  to  the 
appointment  of  an  umpire  The  court  held  that  to  decree  a  specific  pei-formance, 
would  be  to  make  a  contract  for  the  parties,  and  then  enforce  it ;  that  defendant 
A  's  agreement  was  not  to  convey  on  being  jiaid  the  cost  of  his  half,  but  to  convey 
on  being  paid  the  cost  as  fixed  Tiy  the  arl)itrators  named.  Again,  in  Graham  ii. 
Call,  5  Munf.  396,  the  contract  was  to  convey  land  for  a  price  to  be  deiermined 
by  the  parties;  and  one  of  them  having  dieil  before  the  amount  had  been  fixed 
by  them,  the  court  held  the  agi-eement  incomplete,  and  refused  to  grant  a  specific 
performance. 

(1)  In  Darbey  v.  Whitaker,  4  Drew.  134,  the  price  was  agreed  to  be  fixed  by 
valuers,  but  one  of  them  refused  to  act,  because  the  defendant  had  informed  him 
that  he  would  not  perform  even  if  an  award  was  made,  and  a  specific  execution 
was  refused.  In  Wilks  i\  Davis,  3  Meriv.  507,  the  agreement  was  to  convey  for 
a  price  to  be  fixed  by  arbitrators,  but  the  defendant  refused  to  perfect  the  arbi- 
tration arrangement  by  executing  an  arbitration  bond,  and  the  court,  for  that 
reason,  refused  to  enfoi-ce  the  contract.  In  another  somewhat  analogous  case 
(Morgan  v.  Milman,  3  DeG.  M.  &  G.  24),  the  stipulation  as  to  jn-ice  was  that  it 
should  be  determined  in  one  of  two  altei-native  manners  specified  ;  no  election 
having  been  made  between  the.se  two  methods,  the  contract  was  held  incomjilete, 
and  a  specific  performance  imjiossible.  See,  also,  Noi-fieet  v.  Southall,  3  Miirph. 
189;  Dike  v.  Greene,  4  R.  I.  281,  289 -,  Graham  v.  Call,  fi  Munf.  396;  Bakei-  v. 
Glass,  6  Munf.  212  ;  Wilks  ■?).  Davis,  3  Mer.  'yOl  ;  Collins  v.  Collins,  2()  Beav.  306  ; 
Vickers  v.  Vickers,  L.  R.  4  Eq.  529  ;  Richardson  v.  Smith,  L.  R.  f>Ch.  648  ;  Earl  of 
Darnley  v.  Lon<lon,  Chatham  &  Dover  Ry.  Co.,  3  DeG.  J.  &  S.  24  ;  L.  R.  2  H.  L. 
43;  Frith  t).  Midland  Ry.  Co.,  L  R.  20  Eq.  100;  [Woodruff  v.  Woodrutt;  44  N.  J. 
Eq.  356  ;  Williams  v.  Morris,  94  U.  S.  444;  Proctor  v.  Mulligan  13  Ont.  R.  683.] 

219 


214  SPECIFIC  pri;forma.\ck  of  coxtracts. 

such  mode  as  the  circumstances  of  the  case  show  to  be  expedient. (1) 
The  tendency  of  the  hxter  English  decisions  is  to  consider  these  stipu- 
lations for  a  determination  of  the  price  by  third  persons,  rather  as 
matters  of  form  than  of  substance  ;  to  construe  them  in  such  manner 
that  they  become  incidental  only  to  the  main  object  of  the  agreement. 
The  court  will  always  look  at  the  substance  of  the  agreement,  and  dis- 
regard tlie  mere  forms  wliich  had  been  provided  for  effectuating  it, 
and  which  cannot  be  made  operative.  It  is  a  settled  rule,  that  where 
a  contract  provides  for  the  sale  of  an  estate,  or  a  dwelling-house,  or  a 
manufactory,  at  a  specified  price,  and  also  for  the  sale  of  the  timber 
in  the  one  case,  or  the  furniture  in  the  second,  and  the  fixtures  or 
machinery  in  the  other,  at  prices  to  be  fixed  by  arbitration,  if  the 
arbitration  fails  for  any  reason,  the  contract  will  still  be  enforced — the 
price  of  the  timber,  furniture,  or  machinery  being  ascertained  in  some 
convenient  manner.  The  result  is,  that  while  the  doctrine  of  Milnes 
V.  Grery,  and  of  the  class  of  cases  to  which  it  belongs,  has  not  been 

(1)  Van  Doi-en  v.  Robinson,  1  C.  E.  Green,  256;  Whitlock  v.  Diiffield,  1  Hoff. 
Ch.  110  ;  City  of  Providence  v.  St.  John's  Lodge,  2  R.  I.  46  ;  Dike  v.  Greene,  4  R. 
I.  285  ;  [Joy  v  S.  Louis,  13S  U.  S  1,  43 ;  Union  Pacific  R.  Co.  v.  C.  R.  I.  &  P.  11. 
Co  ;  51  Fe<i.  Rep.  309,  2  C.  C-  A.  174,  10  U.  S.  App.  88 ;  Springer  v.  Borden,  (111.) 
30  N.  E.  Rep.  603  (Jan.  15,  1895) ;  Burton  v.  Landon,  (Vt.)29  Atl.  Rep.  374  (Mar. 
16,  1894).]  In  Milnes  v.  Gery,  14  Ves.  400,  Sir  Wm.  Grant  stated  the  distinction 
l)etween  the  two  classes  of  cases,  as  given  in  the  text,  in  a  very  clear  and  em- 
j^hatic  manner  ;  and  although  he  held  that  the  case  fell  undei-  the  first  class,  he  at 
the  same .  time  described  the  features  and  incidents  of  a  contract  which  would 
bring  it  within  the  second.  The  distinction  thus  formulated  by  him  has  been  fol- 
lowed by  subsequent  judges.  In  Hall  v.  Warren,  9  Ves.  605,  where,  by  a  clause 
of  the  contract,  the  price  was  to  be  named  by  valuers,  and  by  reason  of  the  vendor 
becoming  insane  these  valuei-s  could  not  be  apjiointed,  Sir  Wm.  Grant  held  that 
whei-e  there  was  a  valid  and  binding  contract,  the  supervening  incapacity  of  one 
party  cannot  deprive  the  other  of  its  benefit,  and  the  court  would  appoint  the 
valuers.  Afterwards,  in  Goui-lay  v.  Duke  of  Somerset,  19  Ves.  429,  where  the 
conti-act  was  to  give  a  lease  with  such  provisions  and  conditions  as  a  named  per- 
son (A.)  should  think  proper,  the  same  judge  held  that  this  provision  for  a  reference 
to  A.  was  not  essential,  and  sent  the  cause  to  a  master  to  settle  and  fix  the  terms 
of  he  lease.  In  a  much  later  case  (Jackson  v.  Jackson,  1  Sm.  &  Gif.  184),  the 
ageeement  was  to  sell  a  certain  manufactory  for  a  named  sum,  and  also  the 
machinery  and  fixtui-es  for  a  pi'ice  to  be  fixed  by  valuers  to  be  appointed  by  the 
parties.  Sir  John  Stuart,  V.  C,  held  this  clause  was  non-essential,  and  granted 
a  specific  performance  after  the  price  Viad  been  ascei'tained  in  another  manner. 
It  should  be  noticed  that  the  price  for  the  manufactory  itself,  which  was  the  main 
thing,  had  been  fixed,  and  that  the  provision  in  reference  to  the  machinery  was 
in  its  nature  auxiliary  and  subsidiaty  to  the  main  object  of  the  contract.  In 
Meynell  v.  Surtees,  3  Sm.  &  Gif.  101,  113  ;  affd.  1  Jur.  (N.  S.)  737,  Sir  John- 
Stuart  stated,  as  a  general  pj-inciple,  that  *'  where  possession  is  referable  to  an 
agreement  to  give  a  fair  consideration,  the  amount  of  which  has  not  been  settled. 
the  court  will,  in  favor  of  possession  and  expenditure  referable  to  this  agj-eement, 
endeavor  by  every  means  within  the  legitimate  bounds  of  its  jurisdiction  to  ascer- 
tain the  amount  of  the  consideration."  See,  also,  Pai'is  Chocolate  Co.  v.  Crystal 
Palace  Co.,  3  Sm.  &  Gif.  119,  123 ;  Eads  v.  Williams,  4  De  G.  M.  &  G.  674  ;  [Coles 
«.  Peek,  96  Ind.  333.] 
220 


THE    CONTRACT  MUST  BE    COMPLETE.  215 

repudiated,  and  ia  even  now  enforced  when  the  facts  call  for  its  apjili- 
catioii,  yet  it  is  carefully  restricted  to  the  kind  of  contracts  already 
mentioned;  the  court  will  treat  the  contract  as  falling  within  the 
second  class,  unless  it  would  thereby  do  "iolence  to  the  language  and 
thwart  the  plain  intent  of  the  i)artics.(l)  If  the  price  lias  already 
been  paid,  the  amount  of  it  need  not  be  stated  in  the  written  agree- 
ment or  memorandum  thereof,  since  that  term  of  the  contract  having 
been  performed  is  not  material.  (2) 

The  subject-matter. 

Sec.  152.  III.  The  subject-matter  is,  of  course,  a  most  essential 
term,  and  unless  so  defined  and  described  that  it  can  be  certainly 
identified  by  means  of  the  extrinsic  explanitory  evidence  admis- 
sible in  such  a  case,  the  contract  would  be  incomplete,  and  wholly 
incapable  of  enforcement.  While  the  description  need  not  be  so 
minute  and  exhaustive  that  the  individual  thing  which  constitutes 
the  subject-matter  will  be  fully  known  from  a  mere  reading  or 
recital  of  the  language,  yet  it  must  be  so  definite  as  to  show  what 
the  purchaser  supposed  he  was  contracting  for,  and  what  the  vendor 
intended  to  sell  ;(3)  and  as  to  enable  the  court  to  ascertain  what  it  is 
by  the  aid  of  proper  evidence. (4)     From  the  nature  of  the  case,  it  is 

(1)  Binham  •«.  Bradford,  L.  R.  5  Ch.   519  ^  Richardson  v.  Smith,  L    R.  5  Ch. 
648 ;  Smith  v.  Peters,  L.  R.  20  Eq.  .511 ;  [Coles  v.  Peck,  96  Ind.  333.] 

(2)  Holman  v.  Bank  of  Norfolk.  12  Ala.  369;  Fugate  v.  Hansford,  3  Litt.  (Ky.) 
262.     See  ante,  §  94. 

(3)  Stewart  v.  Alliston,  1  Meriv.  26,  33. 

(4)  Daniels  v.  Davison,  16  Ves.  256,  per  Lord  Eldon  ;  Kennedy  v.  Lee,  3  Meiuv. 
441,  451 ;  Bell  v.  Warren,  39  Tex.  106;  King  i\  Ruckman,  5  C.  E.  Green,  316; 
Millei-  i\  Campbell,  52  Ind.  125  ("the  120  acres  of  land  in  Shannon  Co..  Mo.," 
held  too  indetinite  without  parol  evidence  going  farther  than  is  admissible) ;  Lynes 
V.  Ilayden,  119  Mass.  482;  Carr  v    Passaic  Land,  etc.,  Co.,  7  C.  E.  Green,  85 
(resolution  of  the  dii-ectors  of  a  corporation  "that  two  acres  be  sold."  too  incom- 
plete in  the  description  to  be  specifically  enforced) ;  Holmes  v.   Evans,  48  Miss. 
247;  Ross  v  Baker,  72  Pa.  St.  186;  Chidest(M-  v.  Springfield,  etc.,  R   R.,  59  111. 
9>1 ;  [Maud  i\  Maud,  33  Ohio  St.  147.  J    Cases  in  which  the  subject-matter  has  been 
identitieil  by  extrinsic  evidence.     Hurley  v.   Brown,  98  Mass.  545 ;  Waring  v. 
Ayres,  40  N.  Y   357  ;  Torr  v.  Torr,  20  Ind.  118  ;  White  v.  Hermann,   51  111.  243  ;. 
Fowler  v.   Redican,  52  111.  405  ;  Purinton  v.   Northern  111.  R.  R.,  46  111.  297  ; 
M  -Murray  v.  Spicer,  L.   R.   5  Eq.  527  ;  and  see  cases  cited  under  section  90. 
[Certainty  of  Desf-riptlon  and  Identification. — Where  the  writing  was  "August 
the  20.  1850,  i  do  hei-eby  agree  that  .lonnthau  Philli[)'s  shall  have  the  lands  wich 
he  is  posetion  of  now  foi-  the  labor  he  don  for  me  over  age,  and  this  shall  be  his 
wrecept  for  all  my  wi-ites  jmd  claims  against  the  land.     Da\id  Phillips,"  it  was 
held  that  the  writing  was  an  agreement  to  convey,  was  not  ineffective  under  the 
statute  of  fi-auds,    and  parol  identification  was  admissible  to  explain  the  land 
intended  to  be  conveyed  ;   Phillips  ?i.   Swank,  120  Pa.  St.  76,  and  in  the  opinion 

221 


THE   COSTRACT  MUST  BE    COMPLETE.  215 

almost  impossible  that  a  description  should  be  so  perfect  as  to  dispense 
with  all  resort  to  evidence.  Parol  evidence  is  always  admissible  to 
explain  the  surrounding  circumstances,  and  situation  and  relations  of 

in  this  case  it  is  said,  "  It  is  quite  impossible  in  most  cases  so  to  describe  land  as 
to  avoid  the  necessity  of  parol  proof  for  its  identification  ;  for,  whether  it  be 
described  by  me'.es  and  bounds,  by  monuments  erected  upon  the  ground,  or  by 
adjoinej's,  its  identification  necessarily  becomes  the  subject  of  parol  proof.     In 
this  instance,  the  lands  agreed  to   be  conveyed   were  described  as   the  lands 
of  which  Jonathan  was  at  the  time  in  actual  occupancy  and  possession ;  this 
was  no  more  open  to  the  objection  stated  than  if  it  had  been  described  by  its 
adjoiners,  or  by  marks  upon  the  g-i-ound."     See  also,  Hollis  v.   Burgess,  37  Kan. 
487.      "Though  mentioning  no  state,  county  or  town  in  which,  or  plat  on  which, 
the  land  bargained  is  found,  the  agreement  nevertheless  gives  a  descrijjtion 
which  purports  to  and  fitly  may  designate  a  pa/'^ic/i^ar  piece  of  land,  as  the  com- 
plaint in  effect  alleges  that  it  -hi  fact  does      It  cannot,  therefore,  be  said  to  be 
void  for  failure  to  desigtiate  any  tract  of  land  as  the  subject  of  sale.     The  ajipli- 
cation  of  that  description  to  the  face  of  the  earth — the  identification  of   the 
particular  piece  mentioned  is,  as  in  other  cases  a  matter  of  evidence.     But  the 
descrijition  is  a  sufficient  designation  of  the  subject  of  the  alleged  contract  if  it 
fui-nish  the  means  of  making  the  application  and  identification."     Berry,  J.,  in 
Romans  v-  Langevin,  34  Minn.  312.     Parol  evidence  is  admissible  in  order  to 
place  the  court  in  the  position  of  the  parties  at  the  time  of  making  the  agree- 
ment, and    thus   enable  it   to   intelligently  interpret  the   language  emj^loyed  ; 
Doctor  V.  Hellburg,  65  Wis   415,  and  to  explain  the  circumstances  surrounding 
the   i^arties,  and  to  identify  and  connect   the  location  and  description  of  the 
premises  ;   Tice  v.  Freeman,  30  Minn.  389.     The  following  have  been  held  suffi- 
cient descriptions,  "The  same  then  occupied  by"  the  defendant,  extrinsic  evi- 
dence being  admitted  to  identify  ;   Doctor  v.  Hellburg,  65  "Wis.  415.     "The  Snow 
Farm,"  this  property  being  so  known  by  the  parties  ;   Hollis  v.    Burgess,   37 
Kan.  487.    Where  the  contract  was  to  take  "  one-half  acre  of  the  land  on  Lavender 
Hili,  at  the  top  of  the  field,  as  agreed  on,''  and  it  appeared  that  the   vendor  in 
the  presence  of  the  vendee  "footed"  or  stepped  out  what  would  make  a  half 
acre,  it  was  held  that  if  the  description  was  uncertain,  it  was  trifling,  and  that  the 
parties  had  by  inspection  determined  the  land  contracted  for  ;   Wylson  v   Dunn, 
34  Ch.  D.  569.     Where  a  house  and  land  were  sold  at  public  auction,  with  condi- 
tions of  sale  which  did  not  describe  what  was  sold,  but  the  inference  therefrom 
was  that  it  was  real  estate,  and  the  auctioneer  made  this  memorandum  at  the  foot 
of  the  conditions,   "The  property  duly  sold  to  H.  S.  etc.»  and  deposit  paid  at  close 
of  sale  "  and  gave  this  receipt,    ''Received  of  H.  S.  the  sum  of  £21  as  deposit  on 
property  purchased  on"  date  of  sale;  held  a  sufficient  description  with  the  aid  of 
admissible  parol  evidence;    Shardlon  w-  Cottrell.  20  Ch.  D.  90  >  also  18  Ch.  D.  280 
"  Silver  Lake  Place,  neai-  Washington,  Ky.,  containing  fifty-two  acres,"  held  suffi- 
cient ;  Winn  v.  Henry,  84  Ky.  48.      "And  of  my  forty,  near  Garrison  lands  in  H. 
county  ;**  Lente  v.  Clarke,  22  Fla.  515.     A  contract  to  devise  "one-half  of  my 
estate  "  applies  to  such  property  of  all  kinds  as  the  person  so  contracting  may 
have  subject  to  disposition  by  will  at  his  death,  and  is  not  void  for  uncertainty  of 
description  ;   Roehl  v.  Haumesser,  114  Ind.  811.     In  the  Southern  and  Western 
States,  descriptions  of  land  are  frequently  made  by  reference  to   the   Section, 
Township  and    Range,  established   by   the   United   States   Government.     Such 
descriptions  have  been  the  subject  of  judicial  determination  and  generally  upheld 

222 


TEE   CONTRACT  MVST  BE   COMPLETE.  216 

the  parties,  at  and  immediately  before  the  execution  of  the  contract, 
in  order  to  connect  the  description  with  the  thing  intended,  and 
thereby  to  identify  the  subject-matter,  and  to  explain  all  technical 
terms  and  phrases  used  in  a  local  or  special  sense.     The  description 

"Where  the  description  was  "Section  22  and  28,  Tp.  79,  R.  13,  Poweshiek  county, 
Iowa,"  it  was  declared  sufficient,  and  the  Court  said  :  "  Everybody  understands 
that  Tp.  and  R.  mean  Township  and  Range,  and  being  in  Poweshiek  county,  the 
■court  will  take  judicial  notice  that  the  county  is  in  Range  West."  Ottumna  &  R. 
R.  1).  McWilliams,  71  la.  164.  So  where  the  description,  according  to  such  gov- 
ernment su7'vey,  excepted  "five  acres  in  the  southwest  corner,"  it  was  held  that 
the  exception  was  of  five  acres  laid  off  in  a  square.  See,  also,  Lente  v.  Clarke,  22 
Fla.  515.  The  following  descrii)tions  have  been  held  too  indefinite  to  enable 
specific  performance  of  the  contract  containing  them  :  "  4  rods  wide  along  the  St. 
C.  line  road,  or  if  necessary  to  cover  a  certain  ditch  or  watei-  course,  the  said 
striji  of  land  is  to  be  five  rods  *  *  *  or  any  other  width  not  to  exceed  five 
rods;"  Wiegert  v.  Franck,  56  Mich.  200.  "Five  acres  near  city ""  to  be 
selected,"  parol  evidence  could  not  be  admitted  to  identify  in  such  a  case ; 
Patrick  v.  Sears,  19  Fla.  856.  So  of  a  description  "a  piece  of  ground  commenc- 
ing on  the  corner  of  the  contemplated  cross  street  with  main  street ;  the  cross 
street  is  supposed  to  be  E.  Avenue  ;  said  ground  running  on  a  line  of  Main  street 
100  feet  front  on  the  east,  and  extending  back  from  Main  street  125  feet  to  an 
alley  ;  and  also  two  lots  on  E.  street,  100  feet  front  on  the  west  side  by  141^  feet 
deep  to  an  alley ; "  Ryan  v.  Davis,  5  Mont.  505.  A  description  "two  acres  at 
Spring,  each  side  of  Spiring,  one  to  make  a  square,"  "and  two  aci'es  south  of 
Spring  on  hill,"  held  void  for  uncertainty ;  Brix  v.  Ott,  101  111.  70.  A  descrip- 
tion, "  two  and  one-half  acre  tract  of  land,  being  the  first  half  of  the  five  acre 
tract  along  by  the  fence  just  back  of  the  Chicago  Catholic  burying  ground,"  held 
bad  on  demurrer;  Pierson  v.  Ballard,  32  Minn.  263.  The  description  "the 
property  known  as  the  Ferry  property,  including  all  that  the  said  John  Ott  owns 
between  the  state  road  and  low-water  mark  in  the  Delaware  river,"  held  too 
indefinite  ;  but  it  would  seem  that  in  the  absence  of  equities  that  occurred  in  this 
cage,  such  desci-iptinn  might  be  identified  by  parol ;'  Cortelyou's  Ajipeal,  102  Pa. 
St.  576.  "  One  tract  containing  193  acres,  more  or  less,  it  being  the  interest  in 
two  shares  adjoining  the  lands  of  A.  B.  and  others,"  is  too  indefinite  to  admit  of 
extrinsic  evidence  to  identify ;  Farmer  v.  Bates,  83  N.  C.  387,  and  so  of 
"  40  acres  off  the  Spi-ing  Fork  and  of  my  tract  of  147  acres  on  Peach  Fork 
in  Calhoun  county;"  Westfall  v.  Cottrills,  24  W.  Va.  763.  So  of  "Ten 
acres  of  land  on  the  west  side  of  the  branch  on  the  Keeny  Place,  where 
said  M.  now  resides;"  Matthews  v.  Jarrett,  20  W.  Va.  415;  and  of  "a 
piece  of  land  suj^jiosed  to  be  forty  acres,"  without  reference  to  county  or  state  ; 
Jones  V.  Carver,  59  Tex.  293  ;  a  description  "  sixty  acres  comcdia  and  cone  bottom 
also  ten  acres  hilLside  woodland  adjoining  the  Mitchell  tract "  of  itself  was  held  too 
indefinite,  but  as  the  vendee  had  been  put  in  possession  this  was  held  to  ovei-come 
the  ambiguity  in  the  description.  Meyer  v.  Mitchell,  75  Ala.  475.  So  of  a 
description  of  "five  acres  near"  certain  works  yet  to  b3  constructed  ;  Hamilton 
V.  Harvey,  121  111.  469. 

223 


216  SPECIFIC   PERFORMANCE    OF   COJSTIiACTS. 

must  be  snfRcieut  to  render  the  identity  clear  upon  the  introduction 
of  such  evidence. (1)  But  if  the  description  in  a  written  contract  is  so 
indefinite  that  the  subject-matter  is  not  thus  clearly  determined  by 
the  help  of  such  auxiliary  evidence,  and  further  parol  evidence  would 
be  necessary  to  disclose  the  intent  of  the  parties,  and  to  actually 
supply  the  substantive  term  which  they  have  either  wholly  omitted 
or  inadequately  expressed,  then  the  defect  is  fatal,  the  agree- 
ment is  incomplete,  and  cannot  be  enforced.(2)  The  description 
may  be  wholly  or  partially  contained  in  a  separate  document,  which, 
if  referred  to  by  the  other  portions  of  the  written  contract  in  such  a 
manner  as  to  establish  a  connection  between  them,  becomes  a  con- 
stituent part  of  the  agreement,  and  in  such  a  case,  parol  evidence  to 
identify  the  document  thus  referred  to  is  admissible. (3)  Or  the 
accompanying  document  may  be  signed  simultaneously  with  the 
principal  agreement,  or  may  be  otherwise  authenticated  by  the  par- 
ties, so  as  to  show  that  one  of  them  is  to  be  taken  in  connection  with 
and  exj)lanatory  of  the  other. (4) 

Sec.  153.  An  agi'eement  for  a  lease  must,  of  course,  specify  the  dura- 
tion of  the  term,  for  otherwise  the  letting  would  be  a  mere  tenancy  at 
will,  which,  in  accordance  with  principles  already  stated,  would  not  be 
specifically  enforced.  If  such  an  agreement  is  written,  the  want  of 
provisions  fixing  the  extent  of  the  term  cannot  be  supplied  by  parol 

(1)  The  rule  is  the  same  as  that  which  regulates  the  admission  of  i^arol  evidence 
to  identify  persons  and  things  mentioned  in  wills  or  deeds.  The  following  cases 
furnish  examples  of  the  rule  stated  in  the  text.  The  description  "  Mr.  Ogilvie's 
house,"  in  a  contract,  was  held  sufficient,  because  the  property  intended  could  be 
easily  identified,  in  Ogilvie  v.  Foljambe,  3  Meriv.  53 ;  parol  evidence  was 
admitted  to  explain  the  phrases  "50Z.  more  of  premium,"  and  "the  profit  rent  of 
the  present  tenant,"  in  Skinner  v.  McDouall,  2  DeG.  &  S.  265 ;  the  description, 
"the  mill  property,  including  cottages,  in  Ester  village,  all  the  jii-operty  to  be 
freehold,"  also  held  sufficient,  being  fully  identified  V)y  parol  evidence,  McMur- 
ray  v.  Spicer,  L.  R.  5  Eq.  527 ;  Robeson  v.  Hornbaker,  2  Green's  Ch.  60  ;  Fowler 
V.  Redican,  52  111.  405;  Waring  v.  Ayres,  40  N.  Y.  357;  Mead  v.  Parkei-,  115 
Mass.  413  ;  and  ante,  §  90. 

(2)  In  an  agreement  for  letting,  the  only  description  of  the  thing  to  be  leased 
was  "coals,  etc."  This  was  held  wholly  insufficient  by  Knight  Bruce,  L.  J.,  in 
Price  V.  Griffith,  1  DeG.  M.  &  G.  80.  See,  also,  Inge  v.  Birmingham,  etc.,  Ry. 
Co.,  3  DeG.  M.  &  G.  658  ;  McMurtrie  v.  Bennette,  1  Harring.  Ch.  124.  The  descrip- 
tion in  a  written  contract,  to  sell  "  all  that  piece  of  pi-operty  known  as  the  Union 
Hotel  property,"  was  held  insufficient  in  King  v.  Wood,  7  Miss.  389.  The  correct- 
ness of  this  decision  may  well  be  doubted. 

(3)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  21,  33 ;  Baumann  v.  James,  L.  R,  3  Ch.  50S 
See  ante,  §§  83,  84. 

(4)  Nene  Valley  Drainage  Comm'rs  v.  Dunkley,  L.  R.  4  Ch.  D.  1. 

224 


THE    CONTRACT  MUST   BK    COMI'LKTJi.  217 

evidence. (1)  A  (loscriptiou  of  the  subject-matter  in  contracts,  as  well 
as  in  deeds  and  wills,  is  sidlicient  when  it  coniplic's  witli  tlif  maxim, 
id  certain  c^t  quod  n-riain  reddi  polest.  For  example,  a  contract  loi-  tlu^ 
sale  of  land  will  sntiiciently  deline  the  particnlar  tract  st»ld  by  referring 
to  the  description  containcul  in  a  certain  deed  on  record,  or  in  tin*  pos- 
session of  the  ven(h)r.(2) 
Other  material  terms.  , 

Sec.  154.  IV.  A  contract  to  be  comi)lete  must  also  contain  all  the 
other  material  terms  in  addition  to  tliose  already  describe<l.  Of 
course,  no  rule  can  be  laid  down  by  which  the  materiality  of  the 
terms  shall  be  determined  in  all  cases,  because  this  nuist  dei)end 
npon  circumstances  special  to  every  case.  The  general  doctrine, 
however,  has  been  formulated  by  eminent  judges,  that  an  agree- 
ment framed  in  general  terms  will  be  enforced  where  the  law  will 
supply  the  details;  but  if  any  of  its  details  are  to  be  supplied  by 
modes  which  the  court  cannot  adopt,  there  is  then  no  complete  con- 
tract capable  of  being  specifically  executed.(8)  This  doctrine  applies 
with  special  force  to  contracts  which  have  been  reduced  to  a  written 
form,  for  then  the  familiar  principle  becomes  operative,  that  an  agi-ee- 
ment  in  writing  cannot,  when  it  is  set  up  as  the.  cause  of  action  or 
defense  in  a  suit,  be  altered,  or  added  to  by  parol  evidence,  so  that  if 
a  written  contract  lacks  a  material  term  it  cannot  be  specifically 
enforced.  (4) 

(1)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22  ;  Fitz  Maurice  v.  Bayley,  3  L.  T.  (N.  S.) 
69  ;  Farwell  v.  Mather,  10  Allen,  322  ;  Hurley  v.  Brown,  98  Mass.  545  ;  Hodges 
V.  Howard,  5  R.  I.  149  ;  Abeel  v.  Radcliff,  13  Johns.  300  ;  Nesham  v.  Selby,  L. 
R.  7  Ch.  406  ;  13  Eq.  191.  Memorandum  of  an  agreement  to  take  a  lease,  whirli 
specified  the  term  of  years  and  the  rent  and  other  matters,  but  omitted  to  state 
on  what  day  the  letting  should  commence,  held  incomplete,  and  a  sjjecitic  per- 
formance refused. 

(2)  Owen  v.  Thomas,  3  My.  &  K.  353  ;  Haywood  v.  Cope,  4  Jui-.  (N.  S.)  227; 
Bauman  v.  James,  L.  R.  3  Ch.  508 ;  [cf.  McFarlane  (;.  Williams,  107  111.,  33  ; 
McCoy  V.  Bassett,  26  W.  Va.  570].  In  Monro  v.  Taylor,  8  Hare,  51,  the  contract 
was  to  sell  an  estate  described  as  within  certain  ascertained  metes  and  bovnids, 
and  as  being  partly  freehold  and  partly  leasehold.  It  was  held  not  void  for 
uncertainty,  since  it  was  good  as  a  contract  to  sell  the  vendor's  interest  in  the 
land  It  was  further  held  that  the  vendee  was  entitled  to  have  the  boimdaries 
of  the  freehold  and  of  the  leasehold  portions  ascertained,  to  have  the  extent  of 
each  portion  determined. 

(3)  South  Wales  Ry.  Co.  v.  Wythes,  5  De  G.  M.  &  G.  888,  per  Tuhnkk,  L.  J.  ; 
Riiigway  v.  Wharton,  6  H.  L  Cas  285,  per  Lord  St.  Lkoxaiids.  [See  Wendell  i: 
Hirt,  39  Hun.  382  j 

(4)  The  doctrine  of  the  text  can  best  be  illustrated  by  examjiles  of  incompleteness. 
Contracts  have  been  held  incomplete  as  follows  :  An  agreement  to  leas*^  which  did 
not  in  any  way  .state  the  duration  of  the  tei-m.  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22;  Goi-- 
don  V  Trevelyan,  1  Pri.  64.  A  similai-  agreement  which  did  not  state  the  time  when 
the  term  was  to  commence.  Blore  v.  Sutton,  3  Meriv.  237;  Cox  tJ.Middleton.  2  Drew . 
209  ;  Hersey  1).  Giblett,  18  Beav.  174;  [cf.  Seaman  v.  Aschernian,  57  Wis.  547;  Reed 
1).  Campbell,  43  N.  J.  E<i.  406 ;  Marshall  v.  Berridge,  19  Ch.  D.  233].     A  similai- 

225 


218  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

What  terms  are  implied  by  legal  presumption. 

•Sec.  155.  The  terms  thus  far  spoken  of  are  all  express.  They  are, 
also,  in  certain  species  of  contracts,  terms  implied  by  legal  presump- 
tion. Whether  such  terms  are  necessary  or  immaterial,  the  failure  of 
a  contract,  written  or  verbal,  to  state  them  in  express  language,  does 
not  and  cannot  render  it  incomplete,  since  the  very  essence  of  an 
implied  term  consists  in  its  not  being  expressed,  but  simply  inferred 
as  a  presumption  of  law  from  the  other  provisions  of  the  agreement. 
The  following  are  some  of  the  terms  implied  in  contracts  in  general 
use,  it  being  assumed,  in  every  case,  that  there  is  nothing  in  the  con- 
tract by  which  the  presumption  could  be  defeated.  An  agreement 
to  sell  land,  not  specifying  the  interest,  is  impliedly  an  agreement 
to  sell  all  of  the  interest  which  the  vendor  has.(l)  In  England  an 
agreement  to  sell  a  house  simply  implies  that  the  estate  sold  is  a  fee- 
simple. (2)  In  the  United  States,  an  agreement  to  sell  and  convey 
land  generally,  nothing  appearing  to  raise  a  contrary  inference,  implies 
an  undertaking  to  sell  and  convey  the  fee-simple. (3)  Every  agree- 
ment to  sell  and  convey  land  contains  an  implied  condition  that  the 

agreement  which  did  not  state  at  what  time  an  increased  rent  provided  for  was  to 
commence.  Lord  Ormond  v.  Anderson.  2  Ba.  &  By.  363.  An  agreement  for  a 
lease  for  lives  which  did  not  name  the  lives  nor  provide  for  theii'  being  named. 
Wheeler  t).,  D'Esterre,  2  Dow.  359.  But,  i)erhaps,  tlie  lessee  may  name  in  such  a 
case.  Lord  Kensington  v.  Phillips,  5  Dow.  Gl.  Whei-e  the  alleged  agreement 
was  an  auctioneer's  receipt,  which  did  not  state  the  conditions  of  the  sale,  noi-  the 
proportion  the  deposit  was  to  bear  to  the  price.  Blagden  v.  Bradbear,  12  Ves. 
406.  An  agreement  in  which  a  stipulation  as  to  expenses  was  not  settled.  Stiat- 
ford  V.  Bosworth,  2  V.  &  B.  341.  An  agreement  for  partnership  which  defined 
the  ternx  for  which  it  was  to  last,  but  did  not  specify  the  amount  of  the  ca])ital 
and  the  manner  in  which  it  was  to  be  furnished.  Downs  v.  Collins,  6  Hare,  418. 
A  contract  for  the  sale  of  land  wherein  the  vendor  agreed  to  take  in  pa  T-t  payment 
a  house  and  lot  at  its  cash  value  to  be  fixed  by  two  persons,  ami  the  parties 
agreed  to  appoint  these  valuers,  but  no  time  within  which  svich  api)ointment 
should  be  made  was  specified,  and  in  fact  they  never  made  any,  was  held  too  incom- 
plete to  be  specifically  executed.  Baker  v.  Glass,  6  Munf.  212;  Rummens  v.  Robins, 
3  De  G.  J.  &  S.  88.  Defendants  otfered  by  letter  to  sell  to  the  plaintifl"  a  })iece  of 
land  at  a  named  price,  the  letter  ending  :  "There  will  V)e  the  usual  clauses  in  a 
contract,  and  some  limitations  as  to  the  length  of  the  title  to  be  shown  and  other 
minor  details,"  was  accepted  in  writing.  Held  incomplete  and  not  enfoiced ; 
uncertain  as  to  the  clauses  to  be  inserted,  and  as  to  the  title.  See.  also,  Tiei'nan 
V.  Gibney,  24  Wise.  190 ;  Potts  v.  Whitehead.  5  C.  E.  Green,  55  ;  Nichols  v.  Wil- 
liams, 7  C.  E.  Green,  63  :  Riley  v.  Farnsworth,  116  Mass.  223 ;  Clark  v.  Clai'k,  49 
Cal.  586;  Grace  v.  Denison,  114  Mass.  16.  [An  agreement  to  give  "collatei'aJ. 
security  "  without  specifying  the  kind,  is  too  indefinite.  Foster  v.  Russell,  12 
Ont.  R.  136.  As  to  time  of  performance,  see  ante,  §  91  ;  Lamb  v.  Hinman,  46 
Mich.  112  ;  Oakey  v.  Cook,  41  N.  J.  Eq.  350  ;  Lankton  v.  Slewai-t,  27  Minn.  346 
(where  price  was  to  be  paid  "from  time  to  time,"  conti-act  not  uncertain,  mean- 
ing being,  at  such  times  as  payees  saw  fit);  Everett  v.  Dilley,  39  Kan.  73  (pay- 
ment when  vendee  "should  sell  his  wheat  in  the  fall,"  not  imcertain.] 

(1)  Bower  v.  Cooper,  2  Hare,  408. 

(2)  Hughes  V.  Parker,  8  M   &  W   244;  [and  see  Hart  v.  Hart,  18  Ch.  D.  670]. 

(3)  Hoffman  v.  Fett,  39  Cal.  109  ;  Kyle  v.  Kavanagh,  103  Mass.  356,  under  the 
Mass.  Gfm.  Stat.,  ch.  89,  §  8,  an  agreement  to  convey  with  a  good  title  may  be 
complied  with  by  giving-  a  qTut-claim  deed  :  Allen  v.  Atkinson,  21  Mich  351 ; 
Holland  v.  Holmes,  14  Flor  390;  Paa-e  v.  Greeley,  75  111  400;  Hoback  r.  Kil- 
gores,  26  Graft.  442  ;  Thayer  v.  Torrey,  37  N.  J.  Law,  339  ;  In  McGlynn  v  Maynz, 

226 


THE   CONTRACT  MUST  BE   COMPLETE.  219 

vendor's  title  is  a  good  one.(l)  And  in  England,  there  is  tlie  further 
implied  condition  that  the  vendor  shall  deliver  up  the  title  doeds.(2) 
The  title  to  be  showii  by  the  vendor  depends  upon  and  varies  with 
the  nature  of  the  estate  contracted  to  be  sold,  whether — for  example, 
it  is  a  fee-simple,  or  a  leasehold,  and  the  like. (3)  The  condition  as  to 
the  vendor's  showing  a  good  title  is  raised  by  the  law  solely  for  the 
benefit  of  the  vendee,  and  may,  therefore,  be  waived  by  him,  even 
though  the  vendor  may  object  to  such  waiver,  and  may  insist  upon 
the  condition  being  enforced  for  the  purpose  of  preventing  a  specific 
performance  of  his  contract. (4)  In  the  United  States,  a  contract  for 
the  sale  and  conveyance  of  land,  besides  the  condition  as  to  a  good 
title,  farther  implies  that  the  vendor  will  execute  and  deliver  a  deed 
with  a  general  covenant  of  warranty  as  the  instrument  of  conveyance. 
Sec.  156.  An  agreement  to  renew  a  lease  implies  that  the  new 
lease  is  to  be  for  the  same  term  as  the  former  one-(5)     An  agreement 

104  Mass.  263,  an  agreement  to  convey  in  fee,  with  full  covenants,  etc.,  is  not 
satisfied  by  a  conveyance  with  conditions  restricting  the  erection  or  use  of  build- 
ings on  the  land  ;  Dresel  v  Jordan,  104  Mass.  407,  an  agreement  to  convey,  .'sub- 
ject to  a  mortgage  which  i.s  to  be  assumed  by  the  vendee  as  part  of  the  couside  a- 
tion,  held  not  satisfied  by  conveying  subject  to  a  condition  that  the  grantee  (ven- 
dee) shall  indeumify  the  grantor  against  the  mortgage.  Roberts  v.  Ba.ssett,  105 
Mass.  409,  a  contract  to  convey  with  "a  clear  title,"  held  not  to  be  salistied  by 
giving  a  warranty  deed  if  the  land  is  actually  incumbered;  [7/i  re  Hoag  and 
Hitchman's  Contract,  21  Ch.  D.  95.  J  Steinburg  v.  Ismay,  35  N.  Y.  Sup'r  Ct.  35, 
a  contract  to  convey  fr(;e  from  incumbi-ance,  is  not  performed  by  tendei-ing  a 
deed  with  release  of  the  vendor's  wife's  dower  right.  [Babbett  v.  Day,  41  N.  J. 
E(i.  392.  An  agreement  to  sell  "a  good  title,  satisfactory  to  both  pai-ties, "  is 
not  uncertain  ;  Oakey  i).  Cook,  41  N.  J  Eq.  350.  That  a  title  by  limitation  is 
siilhcient,  see  Parks  v.  Laroche,  15  Bradw  354.  Where  the  agreement  to  convey 
depended  upon  "A.  or  other  competent  lawyer  pronouncing  the  title  good,"  it 
was  enforced,  although  A.  decided  against  the  title.  Howland  v.  Bradley,  38 
N.  J.  Eq.  288.] 

(1)  Doe  d.  Gray  v.  Stanion,  1  M.  &  W.  695.  701  ;  Worthington  v.  "Warrington,  5 
C.  B.  635  ;  Bates  v.  Delavan,  5  Paige.  299  ;  Watts  v.  Waddle,  1  JIcLean,  200  ; 
Allen  V.  Atkinson,  21  Mich.  351  ;  Holland  v.  Holmes,  14  Flor.  390  ;  Page  v. 
Greeley,  75  111.  400.  [See,  also,  Newark  Sav.  Instit.  v.  Jones,  37  N.  J.  Ivi.  449  ; 
Goodlett  V.  llansell.  66  Ala  151  ;  Noyes  v.  Johnson,  139  Mass.  436  ;  Mayer  v. 
Adrian,  77  N  C  83  (mortgage  sale).  See  In  re  Gloag  and  Miller's  Contract,  23 
Ch.  D   320  ;  Ellis  v.  Rogers,  29  Ch.  D.  661.] 

(2)  Where  such  delivery  was  i-endered  impossible  after  the  contract,  by  an 
accidental  destruction  of  the  deeds,  it  was  held  that  the  conti-act,  could  not  be 
speeitically  enforced  by  the  vendor.  Bryant  v.  Busk,  4  Russ.  1.  Our  system  of 
registry  has  so  completely  revolutionized  the  law  and  practice  of  conveying  in 
this  country,  that  no  such  implied  condition  is  attached  to  a  contract  for  the  sale 
of  land  in  the  United  States. 

(3)  Curling  v.  Plight,  6  Hare,  41  ;  2  Phil.  613.  On  a  contract  for  the  sale  of  a 
lease  in  England,  the  title  which  the  vendor  must  show  to  be  good,  includes  that 
of  the  les.soP  .  Fildes  v.  Hooker,  2  Meriv.  424  ;  Souter  v.  Drake,  5  B.  <fc  Ad.  992 ; 
Hall  -».  Betty,  4  Man.  &  Gi-.  410  ;  Kintrea  xi  Preston,  25  L.  J.  Ex.  2S7  ;  but  the 
sale  of  a  bishop's  lease  i.s  excei>ted.  Pane  v.  Spencer,  2  Mer.  430,  n.  Whether 
such  condition  is  implied  in  similar  contracts  by  the  law  of  this  country.  Query 
There  seems  to  be  no  reason  why  it  should  not  be. 

(4)  Bennett  t)   Fowler,  2  Beav.  302. 

(5)  Price  v  Assheton,  1  Y.  &  C.  Ex.  82 ;  [Foster  v.  Wheeler,  36  Ch.  D.  695. 
An  agreement  to  renew  a  lease  was  held  to  imply  that  the  new  lease  should  be 
on  the  same  terms  as  the  old,  in  Seaman  v.  Ascherman,  57  Wis.  547  ;  amtra. 
Reed  v.  Campbell,  43  N.  J.  Eq.  406.]  In  a  contract  to  a-ssign  a  nnmiciiial 
corporation  tax  lease,  there  is  no  inqjlied  warranty  of  title  by  the  \-endor  ;  he 

:27 


220  SPECIFIC   Ph'JiFOJiMA.^CK    OF   CO.\'JRACTS. 

by  a  lessee  to  give  an  underlease,  inq'/lies  that  it  shall  be  subject  to 
the  covenants  contained  in  the  suyerior  lease  under  which  it  is 
granted.(l)  Whether,  in  executory  agreements  for  the  making  of 
moro  formal  contracts,  there  is  an  implied  term  that  the  latter  con- 
tract when  executed  shall  contain  all  the  provisions  usually  found  in 
instruments  of  that  class,  is  a  question  which  has  been  raised,  but 
apparently  not  yet  settled  in  England.(2) 

§  157.  The  very  nature  of  an  implied  term  assumes  that  the  con- 
tract contains  no  express  clause  or  stipulation  concerning  the  same  mat- 
ter, which  would  obviate,  take  the  place  of,  or  defeat  the  implication ; 
that,  in  short,  the  language  of  the  contract  is  silent  on  the  subject.  An 
implied  term  may,  therefore,  be  displaced  and  destroyed  by  the 
express  provisions  of  the  agreement ;  as,  for  a  familiar  example, 
a  contract  for  the  sale  of  land  may  contain  any  stipulations  concern- 
only  warrants  its  genuineness  and  his  ownerwhip  ;  and  the  vendee  is  presumed 
to  take  it  at  his  own  risk  in  respect  to  the  title,  Boyd  v.  Schlesinger,  59  N.  Y.  301. 
[But  when  the  agreement  was  to  transfer  not  merely  the  leases,  but  the  land  and 
buildings  for  the  terms  of  the  leases,  the  vendor  must  show  a  good  title.] 

(1)  Cosser  v.  Collinge,  3  My.  &  K.  283 ;  Smith  v.  Capron,  7  Hare,  185.  Since 
so  large  a  poi-tion  of  business  and  dwelling-house  property  in  England  is  lease- 
hold, and  these  let  tings  ai-e  generally  for  considerable  terms,  the  questions  grow- 
ing out  of  leases,  sub-leases,  and  contracts  to  give  them  are  more  pi-actically 
important  and  numerous  there  than  in  this  country.  As  a  contract  for  a  sub- 
lease implies  that  it  is  to  be  taken  subject  to  the  covenants  of  the  first  lease,  the 
question  arises  whether  it  is  also  implied  that  these  covenants  are  only  the  ones 
usually  inserted  in  leases.  Cosser  v.  Collins,  supra,  held  that  it  was  the  duty  of 
the  sub-lessee  to  inquire  into  the  covenants  of  the  superior  lease,  and  this  seems 
to  be  against  such  an  implication  ;  but  the  case  of  Flight  v.  Barton,  3  My.  &  K., 
2S2,  seems  to  indicate  a  different  doctrine,  namely,  that  if  the  contract  for  a  sub- 
lease was  silent  in  respect  to  the  covenants,  and  the  sub-lessee  had  not  taken 
possession,  and  had  had  no  notice,  then  if  it  turned  out  that  the  supei'ior  lease  con- 
tained lanusual  covenants,  the  specific  performance  would  not  be  forced  upon  him 
against  his  will.  It  is  certain,  however,  that  if  any  such  implication  arises  as  ta 
the  nature  of  the  covenants,  it  is  a  slight  one,  and  easily  rebutted,  either  by  the  sub- 
lessee's taking  possession,  since  he  ought  to  find  out  what  the  superior  covenants 
are  before  he  does  so  ;  or  by  notice,  actual  or  constructive — as,  for  example,  by  the 
sub-lessee's  solicitor  having  seen  the  superior  lease,  which  would  be  notice  to  him 
and  to  his  client  of  all  the  covenants  which  it  contains.  Cosser  v.  Collins,  3  My. 
&  K.  283  ;  Smith  v.  Capron,  7  Hare,  185. 

(2)  See  Harding  v.  Metrop.  Ry.  Co.,  L.  R.  7  Ch.  App.  154 ;  Ricketts  v.  Bell,  1 
DeG.  &  Sm.  335,  per  Knight  Bruce,  V.  C.  ;  [Newark  Savings  Instit.  v.  Jones,  37 
N.  J.  Eq.  449  ;  Seaman  v.  Ascherman,  57  Wis.  547.  ]  For  example,  whether  a 
contract  for  a  lease  implies  that  the  lease  shall  contain  the  usual  covenants ; 
whether  the  brief  memorandum  of  a  sale  implies  that  the  formal  contract  when 
drawn  up  shall  contain  the  stipulations  customary  as  to  showing  title  and  the 
like.  This  question  has  not  arisen  in  its  general  form  in  the  United  States, 
probably  because  it  cannot  be  said  that  there  are  any  settled  fustom  as  to  what 
contracts,  leases,  etc.,  shall  contain.  In  one  of  its  special  applications,  however, 
the  rule  has  been  thoroughly  settled,  that  a  contract  for  the  sale  of  land  implies 
that  the  deed  shall  contain  the  ordinary  covenant  of  warranty.     (See  ante,  §  155.) 

228 


THE    CONTIiACT  Ml  ST  II R    COMI'l^ETR.  221 

ing  the  title  to  be  shown  by  tlie  vendor  and  accepted  by  the  vendee, 
and  thus  defeat  the  iu'esumption  as  to  a  <j:ood  title  ;  or  may  require 
the  purchaser  to  be  satisfied  with  quit-claiui  deed,  and  tlius  remove 
the  implication  respecting  a  warranty.  And,  in  this  nianucr,  all  the 
implications  can  be  obviated. (1)  Again,  a  notice  received  at  or  before 
the  time  of  entering  into  the  agreement,  by  the  purchaser  or  lessee, 
of  the  real  state  of  the  title,  or  of  the  actual  interest  or  condition  of 
the  vendor  or  lessor,  will  destroy  any  implications  as  to  the  title  or 
the  nature  of  the  estate  to  be  conveyed  or  assigned,  which  might 
otherwise  have  arisen ;  since  these  implied  terms  do  not  arise  from 
the  express  agreement  of  the  parties,  but  from  operation  of  law,  and 
therefore  their  effect  rests  upon  the  same  foundation  as  that  of 
notice. (2)  For  example,  if  a  vendor  contracted  to  sell  land  generally, 
but  the  purchaser  had  notice  that  he  held  only  a  leasehold  interest, 
the  implication  which  would  otherwise  have  arisen  that  he  was  to 
convey  the  fee,  would  be  rebutted.(3)  But  if  the  vendor  had  actually 
contracted  to  convey  the  fee,  such  notice  would  not  effect  the  stipulation. 

At  -what  time  the  completeness  must  exist. 

Sec.  158.  It  being  a  settled  doctrine  that  a  contract  must  be  com- 
plete in  order  to  be  specifically  executed,  the  practical  question 
arises  :  At  what  time  must  this  quality  of  completeness  exist  ?  Is  it 
enough  that  the  agreement  is  perfected  at  any  time  before  the  hear- 
ing or  the  decision,  or  must  it  be  complete  in  its  terms  at  the  time 
when  the  suit  for  its  enforcement  is  commenced  ?  As  this  quality  is 
essential  to  the  existence  of  a  cause  of  action,  and  as  a  cause  of  action 
must  have  accrued  before  the  suit  is  brought,  it  follows  that  the  time  at 
which  the  completeness  must  be  ascertained,  is  the  commencement  of 
the  action  ;  or,  in  the  old  chancery  practice,  the  filing  of  the  bill. (4) 
If  the  defendant  had  a  good  legal  or  equitable  ground  for  resisting 
performance  and  defending  the  suit  when  it  was  instituted,  it  would 
be  manifestly  unjust  to  dcjjrive  him  of  this  defense,  and  thus  wholly 
change  his  legal  condition,  by  any  subsequent  acts  for  which  he  was 
not  responsible. (5)    This  being  the  general  rule,  there  are  two  excep- 

(1)  Freme  v.  "Wright,  4  Mad.  364. 

(2)  Og-ilvie  v.  Foljambe,  8  Meriv.  53,  64;  James  v.  Litchfield,  L.  11.  O'Eij.  51  ; 
[Newark  Savings  Institution  v.  Jones,  37  N.  J.  Eij.  440.]  A  notice  of  a  contrary 
condition  of  circumstances  does  not,  however,  effect  tha  express  provisions  of  a. 
contract.     Bamett  v.  Wheeler,  7  M.  &  W.   364. 

(3)  Cowley  v.  Watts,  17  Jur.  172. 

(4)  Adams  v.  Broke.  1  Y.  &  C.  C.  C.  627. 

(5)  Right  V.  Cuthell,  5  Eiist,  4!tl  ;  Doe.  d.  Mann  v.  Walters,  10  B.  &  C.  626; 
Doe.  d.  Lyster  v.  Goldwin,  2  Q.  B.  143.  In  a  case  upon  a  contract,  when  the 
consent  of  a  third  person  was  necessary  to  its  completion,  and  this  consent  wjis 
not  given  befoi-e  the  suit,  the  giving  it  after  the  suit  was  brought,  and  before 
the  hearing,  was  held  too  late.     Adams  v.  Broke,  supra. 

229 


222  SPECIFIC   PERFORMANCK    OF   CONTRACTS. 

tions,  which  are,  however,  rather  apparent  than  real,  since  in  neither 
instance  is  the  contract  actually  incomplete  at  the  commencement  of 
the  action.  The  first  is  the  case  already  discussed, (I)  where  the  con- 
tract provides  for  some  act  to  be  done  by  third  persons — as  the  fixing 
the  price  by  valuers — or  for  some  analogous  proceeding  to  be  taken ; 
but  this  provision  is  not  an  essential  part  of  the  agreement,  but  rather 
incidental  and  subsidiary,  so  that  relief  will  not  be  refused  if  it  is 
not  liberally  complied  with  ;  under  these  circumstances,  if  through 
neglect  of  the  defendant,  or  from  any  other  cause  other  than  the 
plaintiff's  own  default,  the  provision  has  not  been  carried  into  effect, 
the  court  will,  as  a  preliminary  to  its  decree,  and  as  a  step  in  the  cause, 
provide  a  substituted  method  for  accomplishing  the  object  of  the  pro- 
vision, and  completing  the  agreement.(2)  The  second  is  the  case, 
also  described  heretofore,  where  a  contract  contains  a  term  which  is 
not,  in  itself,  full  and  definite,  but  complies  with  the  maxim,  id  cer- 
ium est,  etc.  Such  a  contract  will  be  enforced,  although  the  court,  as 
has  been  shown,  must,  in  the  progress  of  the  suit,  resort  to  extrinsic 
evidence  for  the  purpose  of  explaining  the  term,  applying  the  refer- 
ences which  it  makes,  and  identifying  the  persons,  things  or  language 
to  which  it  refers.  (3)  Such  a  contract,  however,  is  plainly  as  com- 
plete as  one  in  which  all  the  terms  are  expressed  in  a  minute  and 
detailed  manner. 


SECTION  VI. 

The  contract  must  be  certain. 

Section  159.  As  stated  in  the  preceding  section,  the  quality  of 
certainty  now  to  be  considered  denotes  that  the  contract  not  only 
contains  all  the  material  terms,  but  that  each  one  of  them  is  ex- 
pressed in  a  sufficiently  exact  and  definite  manner.  An  uncertain 
contract,  therefore,  may  perhaps  embrace,  in  a  partial  manner,  all 
the  material  terms,  but  on  account  of  the  inexact,  indefinite,  or 

(1)  Ante,  §  151. 

(2)  Prilchard  v  Ovey,  1  J.  &  W.  396 ;  Lord  Kensington  v.  Phillips,  5  Dow.  61. 
Agreement  to  grant  an  annuity  for  three  lives  to  be  named ;  the  consideration 
was  paid  ;  defendant  refused  to  do  anything,  and  so  the  lives  were  not  named ; 
the  court  directed  the  plaintiff  to  nominate  the  lives,  and  thus  to  perfect  the 
agreement  so  that  it  could  be  specifically  executed.     See,  also,  the  cases  in  §§  150, 

151. 

(3)  "Walker  v.  Eastern  Counties  Ry.  Co.,  6  Ha.  59 _  Owen  v.  Thomas,  3  My.  & 
K.  353 ;  Monro  v.  Taylor,  8  Ha.  51.     See,  also,  cases  ante,  §  153. 

230 


THE   CO ^ TRACT  MUST  BR   CERTAIN.  223 

obscure  language  in  which  one  or  more  of  them  is  stated,  it  fails  to 
express  the  intent  of  the  parties  with  suihcient  clearness  to  enable  the 
court  of  equity  to  enforce  its  provisions.  The  specific  performance  of 
an  agreement,  thus  uncertain,  will  not  be  decreed.  No  criterion  can 
be  formulated  which  shall  be  a  test  of  certainty  in  ievery  instance. 
As  a  general  proposition,  although  it  is  perhaps  too  vague  to  be  of 
much  practical  use,  the  terms  of  a  contract  must  be  expressed  with  a 
reasonable  certainty,  and  what  is  reasonable  in  any  case  nnist  depend 
upon  the  subject-matter  of  the  agreement,  the  purpose  f^r  which  it 
was  entered  into,  the  situation  and  relations  of  the  parties,  and  the 
circumstances  under  which  it  was  made.(l)     A  greater  amount  or 

(1)  Marsh  v.  Milligan,  3  Jur.  (N.  S.)  979,  per  PAfiE  Wood,  V.  C.  ;  Swaisland  v. 
Dearsley,  29  Beav.  430  ;  Tillett  v.  Charin<r  Cross  Bridge  Co.,  2G  Beav.  410  ;  Mor- 
rison V.  Barrow,  1  De  G.  F.  &  J.  633  ;  Taylor  v.  Portinyton,  7  De  G.  M.  &  G.  328 ; 
Price  V.  Sahisbury,  32  Beav.  446;  32  L.  J.  (N.  S.)  Ch.  441  •  Allon  v.  W.'l.l>,  64 
111.  342 ;  Reese  v.  Reese,  41  Md.  5.')4 ;  Tallnian  v.  Franklin,  4  Kei'n.  084  ;  Neuf- 
ville  V.  Stuart,  1  Hill  Ch.  1.59  ;  Bell  v.  Bi-uon,  1  How.  (U.  S.)  169,  173 ;  Pearce  v. 
"Watts,  L.  R.  20  Eq.  492.  Contract  for  sale  of  an  estate,  vendor  resei-ving-  "  the 
necessary  land  for  making-  a  railway"  through  the  estate  to  a  j)lace  named. 
Held,  in  action  for  a  sijecitic  performance  by  the  vendor,  that  the  reservation  was 
so  uncertain,  that  it  made  the  contract  incapable  of  enforcement.  [So,  a  con- 
tract for  the  sale  of  lands  "to  be  selected"  is  too  uncei-tain  ;  Patrick  v.  Sear.s, 
19  Fla.  8.')6.]  The  following  are  additional  cases  illusti-ating  the  general  doctrine 
of  the  text.  Stanton  v.  Miller,  58  N,  Y,  192.  A.  agreed,  in  consiileration  of 
services  to  be  i)erformed  by  B.  and  his  family,  to  convey  a  house  and  lot  to  such 
member  of  B.'s  family  as  A.  should  select.  Held,  the  agreement  was  so  uncer- 
tain in  respect  to  the  person  who  was  to  be  the  grantee,  that  it  could  not  be 
specitically  enforced.  Mehl  v.  Von  der  "Wulbeke,  2  Lans.  267j  Foot  v  Webb,  59 
Barb.  38  ;  Munsell  v.  Loree,  21  Mich.  491  ;  Tiernan  v.  Gibney.  24  Wise.  190| 
Bowman  u  Cimningham,  78  111.  48;  Miller  v.  Campbell,  52  Ind.  125;  Lynes  v. 
Hayden,  119  Mass.  482  ;  Mastin  v.  Halley,  61  Mo.  196;  Odell  v.  Morm,  5  Oreg. 
96  (the  objection  of  uncertainty  is  applied  with  spec'ial  strictness  ag.ainst  the 
assignees  and  representatives  of  the  original  parties)  ;  Johnson  v.  Johnson.  16 
Minn.  512  ;  McClintock  v.  Laing,  22  Mich.  212  ;  Nichols  V'  Williams,  7  C.  E. 
Green,  63  (an  agreement  to  give  two  mortgages  for  part  of  the  price  of  land, 
which  did  not  state  when  they  were  to  be  paid,  or  at  what  rate  of  interest,  held 
too  uncertain  to  be  enforced) ;  [Snyder  v.  Graves,  (N.  J.)  21  Atl.  Rep.  291  (same) ; 
Burnett  v.  KviUak,  76  Cal.  535  (same)  ;  Magee  v.  McManney,  70  Cal.  553  ;  Holli- 
day  V.  Hubbard,  45  Minn.  333  ;  George  v.  Conbaim,  38  Minn.  338 ;  but  see 
Roberge?).  Winn,  (N.  Y.)  39  N.  E.  Rep.  631,  (Feb.  8,  1895),  (an  agreement  to 
substitute  a  good  security  for  a  worthless  one  implies  that  the  now  security  is  to 
draw  the  .same  rate  of  interest  and  run  the  same  period  of  time  as  the  old)  ]  Carr 
V.   Passaic  Land,   etc.,  Co.,  7  C.  E.  Green,   85;  4  lb.  424;  Pierce  v.  Catron,  23 

231 


THE   CONTRACT  MUST  BE   CERTAIN.  223 

Gratt,  5S8  ;  Long  v  Duncan,  10  Kas.  294  ;  Hanlesty  v.  Richardson,  44  Md.  617 ; 
Iloyt  D.  Tuxbury,  70  III.  331  ;  Bi-ink  v.  Steadman,  70  111.  241  ;  Wrig-lit  v  Wi-ig-ht,  31 
Mich.  380 ;  McKibbin  v.  Brown,  1  McCarter,  13 ;  Hyde  v.  Cooix;r,  13  Rich.  Eq. 
250 ;  Welsh  v.  Bayaud,  6  C.  E.  Green.  186  ;  "White  v.  Hermann,  51  111  243;  Matte- 
son  V.  Scofield,  27  Wi.sc.  671 ;  Soles  v.  Hickman,  8  Hai-ri.s  180  ;  Potts  r.  White- 
head, 5  C,  E.  Green,  55  ;  Camden,  etc.,  R.  R  v.  Stewart,  3  C  E.  Gi-een,  489  ;  Van 
Doren  v.  Robinson,  ICE.  Green,  256  ;  King  v.  Ruckman,  5  C.  E.  Green,  316  ; 
Ferris  v  Irving,  28  Cal.  645  ;  Agard  v-  Valencia,  39  Cal.  292  ;  Mintura  v.  Baylis, 
33  Cal  129  ;  McGuire  v.  Stevens,  42  Miss.  724  ;  Hammer  v.  McEldo\vney,  46  Pa. 
St.  334  ;  Whelan  v.  Sullivan,  102  Mass  204  -,  Myei-s  v.  Forbes,  24  Md.  598  ;  Gels- 
ton  V.  Sigmund,  27  Md.  384  ;  Dobson  v.  Litton,  5  Coldw.  616  ;  Huff  v.  Shepard, 
58  Mo  242  ;  Buckmaster  v.  Thompson.  36  N.  Y.  558  ;  Wiswall  v.  Tefft,  5  Kas.  263  ; 
[Christian,  etc,  Co.  v  Bienville  W.  S.  Co.,  (Ala  )  17  So.  Rep.  352,  (April  3,  1895), 
(contract  to  supply  water  "  from  month  to  month  ''  or  "  for  three  years  resei-ving 
the  right  to  elect  to  continue  the  service  thereafter  "  is  too  indefinite  as  to  time  ; 
Edichal  Bullion  Co.  ■».  Columl)ia  Gold  Mining  Co  ,  (Va  )  13  S.  E.  Rep  100,  (time 
of  payment  uncertain) ;  Diamond  State  Iron  Co.  v.  Todd,  (Del.)  14  Atl.  Rep.  27, 
(same) ;  see,  also,  Higgins  v  Butler,  78  Me  520,  524;  Olmstead  v.  Abbott,  (Vt.) 
18  Atl.  Rep.  315  (agreement  to  allow  plaintiff  to  flow  defendant's  land  by  a  dam 
five  feet  in  height,  not  uncertain)  ;  Ladd  v.  Stevenson.  43  Hun,  541  (agi-eement 
for  "satisfactory  security  "  too  uncertain);  Dieter -m-  Fallon,  12  N.  Y.  Supj).  33; 
liallou  V  March,  133  Pa.  St.  64,  68 ;  May  v  Cavender,  (S  C.)  7  S.  E  Rep.  489  ; 
Thompson  v.  Weeks,  32  111.  App.  642  (agreement  to  lease  right  to  remove  sand, 
"the  sand  to  be  taken  from  places  to  be  agreed  on  from  time  to  time,"  too  uncer- 
tain) ;  Cherbonnier  v.  Cherbonnier,  (Mo.)  18  S.  W.  Rep.  1083 ;  Gr.-ives  v.  Key 
City  Gas  Co  ,  (Iowa).  50  N.  W.  Rep.  283 ;  Throckmorton  v.  Davidson,  68  Iowa, 
643  ;  Gamble  v.  Wilson,  (Nebr.)  50  N.  W.  Rep.  3  ;  Clarke  v.  Koenig,  (Nebr.)  54 
N.  W.  Rep.  842 ;  Ham  v.  Johnson,  (Minn  )  56  N.  W.  Rep.  584 ;  Hollenbeck  v. 
Prior,  5  Dak.  298,  303  ;  Peck  v.  Levinger,  6  Dak.  54  ;  Lawrence  v.  Saratoga  Lake 
R.  Co.,  36  Hun,  467  (agreement  to  build  a  "neat  and  good  "  bridge,  and  a  "neat 
and  tasteful"  railroad  station,  not  uncertain) ,  Stout  v.  Weaver,  (Wis.)  39  N.  W 
Rep.  375 ;  Roberts  v.  Campbell,  59  Iowa,  675  (agreement  uncertain  which  fails 
to  show  whether  the  conveyance  was  to  be  made  before  or  after  payment) ; 
Repitti  V.  Maisak,  6  Mackey,  366  (uncertainty  as  to  time  of  payment) ;  Wilks  v. 
Bums,  60  Md.  64  ;  McCormack  v.  Sage,  87  111.  484;  Hopkins  v.  Roberts,  54  Md. 
312  ;  Nelson  v.  Kelly,  (Ala  )  8  So.  Rep.  690  ;  Wollensak  v.  Briggs,  20  111.  App.  50 
(contract  to  construct  machinery  for  a  particular  purpose,  but  without  detailed 
specifications  as  to  the  form,  m-aterial,  structure,  principle,  or  mode  of  operation, 
too  indefinite) ;  Carlisle  v.  Carlisle,  77  Ala  339  ;  Wendover  v.  Baker,  (Mo.)  25  S.  W. 
Rep.  918  ;  Woods  t).  Evans,  113  111.  186  (deceased's  agreement  to  leave  to  plaintiff 
"  a  child's  part  of  his  estate  "  too  uncertain)  ;  Litterall  v.  Jackson,  80  Va.  604.] 

232 


224  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

degree  of  certainty  is  required  in  the  terms  of  an  agreement,  which 
is  to  be  specifically  executed  in  equity,  than  is  necessary  in  a  con- 
tract which  is  to  be  the  basis  of  an  action  at  law  for  damages.  An 
action  at  law  is  founded  upon  the  mere  non-i>erformance  by  the 
defendant,  and  this  negative  conclusion  can  often  b'^  established 
without  determining  all  the  terms  of  tl)e  agreement  with  exactness. 
The  suit  in  equity  is  wholly  an  affirmative  proceeding.  The  mere 
fact  of  non-performance  is  not  enough  ;  its  object  is  to  procure  a  per- 
formance by  the  defendant,  and  this  demands  a  clear,  definite,  and 
precise  understanding  of  all  the  terms ;  tliey  must  be  exactly  ascer- 
tained before  their  performance  can  be  enforced.  This  quality  of 
certainty  can  best  be  illustrated  by  examples  selected  from  the 
decided  cases,  and  a  number  of  these  are  collected  in  the  foot- 
iiote.(l) 

(1)  Kendall  v.  Almy,  2  Sumn.  278 ;  Colson  v.  Thompson,  2  Wheat.  336  ;  Can-  v. 
Duval,  14  Pet.  77  ;  Walton  v.  Coulson,  1  McLean,  120 ;  McMutrie  v.  Bennette,  Ilar- 
ring'.  Ch.  121 ;  Millard  v.  Ramsdell,  Harring'.  Ch.  373  ;  Pi-atert).  Miller,  3  Hawkes, 
628 ;  Waters  v.  Brown,  7  J.  J.  Marsh.  123 ;  Fitzpatrick  v.  Beatty,  1  Gilin.  454 ; 
Goodwin  v.  Lyon,  4  Porter,  237.  An  ai,'-reernent  between  two  railway  coinjianies, 
that  one  should  have  the  right  of  running'  with  their  engines,  carriages  and 
ti'ucks,  and  carrying  ti-affic  upon  the  line  of  the  other,  was  held  not  too  uncertain 
to   be  enforced.     Great  Northern  Railway  Co.  v.  Manchester,  etc.,  Railway  Co., 

5  DeG.  &  Sra.  138,  per  Pakkek,  V.  C.  "  It  means  a  reasonable  use — a  use  con- 
sistenf  wth  the  proper  enjoyment  of  the  sul)ject-matter,  and  with  the  rights  of 
the  granting  party."  [See  ante,  §  23,  note]  Catt  v.  Tourle,  L.  R.  4  Ch.  G54  ; 
Eaumann  v.  James,  L.  R.  3  Ch.  508;  Collins  v.  Plumb,  16  Ves.  454;  White 
v.  Hermann.  51  111.  243 ;  Joseph  v.  Holt,  37  Cal.  250.  The  following-  agree- 
ments have  been  held  too  uncertain  to  admit  of  specific  enforcement :  Marriage 
articles  drawn  by  a  Jewish  rabbi  in  an  oTiscure  numnei-,  but  after  a  form  said 
to  be  in  use  among  the  German  Jews  (Franks  V.  Martin,  1  Ed.  309) ;  a  con- 
tract for  the  sale  of  land,  wlicn-e  a  plan  to  be  incorporated  into  it  was  not 
authenticated  so  as  to  be  free  from  doubt  (Hodges  v.  Ilorsfall,  1  Russ.  k.  Myl. 
116);  an  agreement  by  an  actor  to  jHu-form  at  a  theati-e.      Kcmblo  v.   Kcan, 

6  Sim.  333,  337.  "Independently  of  the  difficulty  of  conip<'lling  a  man  to 
act,  there  is  no  time  stated,  and  it  is  not  stated  in  what  charactci-  he  shall 
act;  and  the  thing  is  altogether  so  loose,  that  it  is  perfectly  impossible  for 
the  court  to  determine  upon  what  scheme  of  things  Mr.  Kean  shall  i)erform  his 
agreement."  A  contract  for  the  purchase,  by  a  railway  company,  of  "  tli(!  land 
required"  for  its  construction,  which  also  contained  stipulations  as  to  roads,  cul- 
verts, etc.,  was  held  too  uncertain  tor  enforcement  by  the  lord  justices,  on  appeal. 
Lord  James  Stuart  v.  London  &  North-Western  Railway  Co.,  1  DeG.  M.  k.  G.  721, 
per  Knight  Bruce,  L.  J.  "The  language  is  too  vague,  too  uncertain,  too  oliscure 
to  enable  this  court  to  act  with  safety  oi-  propriety."  The  M.  R.,  in  15  Beav.  513, 
had  held  that  a  surveyor  going  on  the  ground  with  the  contract  before  him 
could  ascertain  accurately  the  land  to  be  taken,  and  therefore  the  terms  were 
sufficiently  certain  to  be  enforced.  Also,  an  agi-eement  drawn  in  general  terms 
for  the  construction  of  a  railway,  according  to  the  terms  of  a  specification  to  be 
l)rt'pared  by  the  engineer  of  the  company  foi-  the  time  being,  was  hold  too  vague, 

233 


THE    CONTRACT  MUST  BE    CERTAIN.  225 

Contradictory  and  conflicting  terms. 

ISeo.  IGO.  If  the  terms  of  a  contract  are  contradictory  and  conflict- 
ing with  each  other  in  their  effect,  and  when  there  are  two  diff"erent 
agreements  between  the  parties  concerning  the  same  subject-matter, 
the  necessary  result  is  an  uncertainty  which  prevents  a  court  of  equity 
from  decreeing  a  specific  execution. (1)  The  doctrine  that  where  an 
agreement  is  uncertain  a  specific  performance  will  be  refused,  is 
applied  by  the  courts,  it  would  seem,  with  more  vigor  against 
assignees  and  representatives  of  the  original  contracting  parties  than 
against  those  parties  themselves. (2) 

What  terms  -will  be  inferred. 

Sec.  161.  Where  the  terms  which  the  parties  have  expressed  in  their 
contract  are  general,  and  the  subordinate  details  will  be  supplied  or 

obscure,  and  uncertain  to  be  enforced  South  Wales  Railway  Co  r.  "Wvthes,  .'> 
De  G.  M.  &.  G.  880.  Also  an  agreement,  in  very  gene^-al  terms  to  give  the  plaintiffs 
accommodations  for  the  sale  of  their  articles  in  the  refreshment  rooms  of  tht^ 
defendants,  and  to  furnish  them  with  the  necessary  appliances.  Paris  Chocolati; 
Co.  V.  Crystal  Palace  Co.,  3  Sm.  &  Gif.  119;  Williamsons  Woolton.  3  Drew. 210  ; 
Smith  V.  Ankrim,  13  S.  &  R.  39  ;  Harnett  u.  Yielding.  2  Sch.  &  Lef.  549;  Tathani 
V.  Piatt,  9  Hare,  660 ;  Taylor?).  Gilbertson,  2  Drew.  391  ;  Holmes  r.  Eastern  Co. 
Ry.  Co.,  3  K.  &  J.  675 ;  Stnrge  v.  Midland  Ry.  Co.,  W.  R.  (18.^)7-8)  233 :  Wilson 
V.  Northampton,  etc..  Railway  Co.,  L.  R.  9  Ch.  279;  Hood  v.  North-Eastei-a 
Railway  Co.,  L.  R.  5  Ch.  .525  ;  [Washburn,  etc.,  Manuf.  Co.  D.  Freeman  Wire  Co., 
41  Fed.  Rep.  410;  Walcott  t.  Watson,  53  Fed.  Rep.  429;  Waters  v.  Bew  (N.  J. 
Eq.)  29  Atl.  Rep.  590,  June  25,  1894  (agreement  to  convey  lands,  reser\ang  to 
grantor  a  right  of  way,  not  too  uncertain  as  to  the  reservation,  since;  the  grantor 
may  designate  in  the  deed  the  location  of  the  way) ;  Wdbonin  v.  Bishoj),  62  Miss. 
341  (agreement  not  too  uncertain  as  to  the  pi-ice) ;  Brown  v.  Munger,  42  Minn. 
482  (consideration  not  too  uncertain,  which  consists  in  part  of  lands  not  described 
in  the  contracts,  but  of  a  specified  sort)  •,  Smith  v.  Taylor,  82  Cal.  533  ;  Whitehill 
V.  Lowe,  (Utah)  37  P.  589,  July  27,  '94;  Winter  v.  Goebner,  (Colo.  App.)  30  P. 
51 ;  Metcalf  v.  Hart,  (Wyo.)  27  P.  900;  Ross  i).  Purse,  (Colo.)  28  Pac.  Rep.  473. 1 

(1)  Callaghan  v.  Callaghan,  8  CI.  &  Fin.  374  ;  Taylor  v.  Portington,  7  DeG.  M. 
&  G.  328.  In  the  latter  case  an  offer  was  made  by  an  intended  lessee  to  take  a 
house  for  a  specified  term,  at  a  specified  rent,  if  it  loas  piU  info  thonmgh  rejjair  — 
and  the  offer  went  on  to  state  that  the  drawing-i-ooms  would  bo  required  to  be 
handsomely  decorated,  according  to  the  jiresent  style,  and  added  some  further 
requirements  as  to  the  painting — the  offer  was  accejited.  The  court  of  ajipeala 
held  that  the  provisions  in  the  contract  concerning  the  repairs  were  indefinite  and 
apparently  incongruous — at  all  events  the  vagueness  and  uncertainty  were  such 
that  the  agreement  could  not  be  specifically  executed. 

(2)  Kendall  v  Alniy,  2  Sumn.  178  ;  Montgomery  v.  Norris,  1  How.  (Miss.)  499 ; 
[Wagonblast  v.  Whitney,  14  Oreg.  83.] 

234 


TEE   CONTRACT  MUST  BK   CERTAIN.  225 

inferred  by  the  law,  the  agreement  will  thereby  be  rendered  suffi- 
ciently certain ;  the  vagueness  and  obscurity,  which  might  result  from 
the  generality  of  the  express  provisions,  are  obviated  by  the  legal 
implications. (3)  The  rule  in  this  respect  is  the  same  as  that  concern- 
ing the  analogous  quality  of  completeness.  The  principle  of  the 
maxim,  id  certain  est  quod  reddi  cerium, potest,  w'lW  often  remove  the 
objection  of  uncertainty  which  might  otherwise  have  been  fatal.     If 

(3)  South  "Wales  Ry.  Co.  v.  Wythes.  5  De  G.  M.  &,  G.  888,  per  Turner,  L.  J.  In 
Sanderson  ■».  Cockermouth,  etc.,  Ry.  Co.,  11  Beav.  497,  a  contract  between  the 
railway  company  and  a  land  owner  to  make  such  i-oads,  ways,  and  steps  for 
cattle  as  might  be  necessary,  was  held  capable  of  being-  performed,  after  the  com- 
jiany  had  taken  possession  of  the  land  and  built  their  railway.  See,  also,  Parker 
V.  Taswell,  4  Jur.  (N.  S.)  183,  per  Stuart,  V.  C.  See,  for  example,  as  to  the  force 
of  the  covenant  that  the  party  "would  settle."  Lee  v.  Lee,  L.  R.  4  Ch.  D.  175, 
per  Jessel,  M.  R.  [See,  also,  Zeringue  v.  Texas  &  P.  R.  Co.,  34  Fed.  Rep.  239 
(stipulation  "  to  build  and  keep  in  repair  such  bridges  as  may  be  necessary  over 
the  lands  herein  ac(][uired,"  not  too  indefinite  to  V)e  enforced) ;  Cochrane  v.  Justice 
Mining  Co.,  (Colo.)  26  Pac.  Rep.  780  ("  settlement  as  usual,"  may  be  explained  by 
reference  to  a  previous  contract)  ;  Lewis  v.  Gollner,  129  N.  Y.  227  (agreement 
"not  to  construct  any  flats  in  [plaintiff's]  immediate  neighborhood"  not  too 
indefinite) ;  Southern  Pine  Fibre  Co.  v.  North  Augusta  Land  Co.,  58  Fed.  Rep. 
26  (contract  to  build  a  "  side-track  "  to  plaintiff's  factory,  sufficiently  certain) ; 
Everett  v.  Dilley,  39  Kan.  73  (time  of  payment,  "  the  autumn  following,"  sufTi- 
ciently  certain) ;  Lee  v.  Briggs,  6  N.  Y.  Supp.  98  (contract  not  too  indefinite  as  to 
the  time  of  performance  which  declares  that  the  vendor  shall  give  a  deed  at  any 
time  on  the  payment  of  l?l,000,  as  the  vendor  may  fix  the  time  by  tendei'ing  a 
deed) ;  Everett  v.  Dilley,  39  Kan.  73  (agreement  sufficiently  certain,  though  nothing 
is  said  as  to  the  interest  on  deferred  payments,  the  time  of  payment  thereof,  or 
the  payment  of  taxes)  ;  Preston  Nat.  Bank  v.  Smith,  etc.,  Co.,  84  Mich.  364 
(agreement  to  assign  .?150,000  of  accounts  not  uncertain,  as  it  gives  the  plaintiff 
the  right  to  select  fr-om  defendant's  accounts  what  it  shall  take) ;  Jones  r.  Parker, 
(Mass.)  40  N.  E.  Rep.  1044  (a  covenant  "reasonably"  to  heat  and  light  demised 
premises  during  the  term,  not  too  indefinite).] 

235 


226  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

a  term  vague,  obscure,  or  imperfect  in  its  language  can  be  made 
certain  by  means  of  references  by  itself  or  by  other  portions  of  the 
agreement,  the  requirements  of  the  rule  are  fully  satisfied  and  a 
spccitic  perfornuinco  will  be  granted. (1)  If  an  agreement  consists  of 
two  parts  which  are  separable,  so  that  one  portion  could  be  enforced 
by  itself,  it  will  be  no  objection  to  a  specilic  execution  of  one  such 
part  that  the  other  is  too  uncertain  to  admit  of  the  same  remedy.(2) 
Parol  evidence,  however,  is  only  admissible  to  a  very  limited  extent, 
and  for  purposes  well  defined  and  limited.  It  cannot  be  used  to  sup 
ply  any  gap  or  omission  in  the  terms  of  a  written  contract ;  it  is 
strictly  confined,  in  cases  where  no  fraud,  mistake,  or  other  equitable 
incident  of  a  similar  character  is  alleged,  to  the  function  of  explana- 
tion, and  of  exhibiting  the  surrounding  circumstances,  as  is  permis- 
sible  in   the   interpretation   of    all   written    instruments.(3)      Parol 

(1)  P]-ater  v.  Miller,  3  Hawkes,  628.  In  Wiswall  v.  McGowan,  1  HoflF.  Ch.  126, 
it  was  held  that  where  a  contract  refers  to  the  subject-matter  by  vague  and  insuffi- 
cient description,  the  defect  may  be  supplied  by  other  documents  coming  from  or 
adopted  by  the  party  against  whom  the  contract  is  to  be  enforced,  pending,  and 
connected  with  the  transaction.  As  to  the  use  of  parol  evidence  in  explaining  an 
uncertain  contract,  see  Fowler  v.  Redican,  52  111.  405. 

(2)  Sarter  v.  Gordon,  2  Hill  Ch.  121.  A.  had  purchased  of  B.  certain  property  at 
a  low  price,  and  agreed,  among  other  things,  to  convey  to  the  children  of  B.,  on 
being  repaid  the  purchase-price  and  interest.  Although  the  agreement  contained 
other  pi'ovisions,  which  were  held  too  uncertain  to  admit  of  equitable  relief,  this 
provision  for  the  conveyance  to  B.'s  children  was  held  separable  and  certain,  and 
a  specilic  performance  of  it  was  decreed. 

(3)  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  273 ;  14  Johns.  32 ;  Talman  v. 
Franklin,  3  Duer,  395  ;  4  Kern.  584  ;  Foote  v.  Webb,  59  Barb.  38  ;  Lobdell  v. 
Lobdell,  36  N.  Y.  327  ;  Buckmaster  v.  Thompson,  36  N.  Y.  558  ;  Waring  v.  Ayres, 
40  N.  Y.  357  ;  Seitzinger'W.  Ridgway,  4  W.  &  S.  472 ;  Soles  li.  Hickman,  8  Harris, 
180 ;  Nichols  v.  Williams,  7  C.  E.  Green,  63;  Stoddert  v.  Tuck,  5  Md.  18 ;  Baker 
1).  Glass,  6  Munf.  212 ;  Graham  t).  Call,  5  Munf.  396 ;  Willis  v.  Forney,  1  Busbee 
Eq.  256 ;  Aday  v  Echols,  18  Ala.  353 ;  Jordan  v.  Deaton,  23  Ark.  704 ;  Sheid  v. 
Stamps,  2  Sneed,  172 ;  Madeira  v.  Hopkins,  12  B.  Mon.  595 ;  Munsell  v.  Loree, 
21  Mich.  491 ;  McClintock  v.  Laing,  22  Mich.  212  ;  Farwell  v.  Lowther,  18  HI.  253  ; 
Taylor  v.  Williams,  45  Mo.  80 ;  Minturn  v.  Baylis,  33  Cal.  129.  In  Parrish  v. 
Koons,  1  Park.  Eq.  Cas.  79,  the  doctrine  is  so  carefully  examined  and  stated  that 
I  shall  quote  from  the  opinion,  especially  as  its  conclusions  require,  I  think,  to  be 
taken  with  some  limitation :  "  To  constitute  an  adequate  written  agreement  for 
the  sale  of  lands  within  the  statute,  it  is  necessary  that  it  should  state  the  terms 
of  the  contract  with  reasonable  certainty,  so  that  the  substance  of  it  can  be  made 
to  appear  and  to  be  understood  from  the  writing  itself,  without  having  recourse 
to  parol  proof.  An  agreement  defective  in  certainty  cannot  be  supplied  by  parol 
proof,  because  that  would  at  once  open  the  door  to  perjury,  and  introduce  all  the 
mischiefs  which  the  statute  was  intended  to  prevent.  A  contract  cannot  rest 
partly  in  writing  and  partly  in  parol.  Unless  the  essential  terms  of  the  bargain 
and  sale  can  be  ascertained  from  the  wi-iting  itself,  or  by  a  reference  contained  in 

2o0 


rUK    ('ONTIiACT  MrsT  HE    i'KKTAIX.  227 

evidence  may  always  be  resorted  to  for  the  purpose  of  explaining  the 
position  of  the  parties  and  of  the  subject-niatter  and  other  sun-ound- 

it  to  something'  olso,  the  writiniif  is  not  ;i  compliance  with  the  statnte.  Parkhurst 
V.  Van  Cortlandt,  1  Johns.  C'h.  273.  If  a  conti-act  be  vag'ue  and  uncertain,  a 
court  of  equity  will  not  exercise  its  extraordinary  jurisdiction,  out  will  leave  the 
party  to  his  legal  remedy.  Colson  v.  Thompson,  2  Wheat.  341  ;  Abeel  v.  Rad- 
clilf,  13  Johns.  297.  In  Reed's  Heirs  v.  Ilornback,  4  J.  J.  Marsh,  377,  it  was 
ruled  that  specific  execution  of  a  contract  will  not  be  cntbrced  unless  the  i)artiea 
have  described  and  identitied  the  juirticular  tract,  or  luiless  the  conti-act  fur- 
nishes the  means  of  identifying  with  certainly  the  laud  to  be  conveyed.  Other 
American  cases  on  the  doctrine  will  be  found  in  Ellis  i\  Deadman's  Heirs,  4  Bibb. 
467  ;  Kendall  v.  Almy.  2  Sumn.  278  ;  Cai-r  v.  Duval,  14  Peters,  77.  And  whether 
the  instrument  from  whi(;h  the  contract  is  sought  to  be  deduced  is  a  receipt  for  a 
deposit,  earnest  or  purchase-money,  it  must  contain  the  same  requisites  to  bring 
it  within  the  statute.  In  Blagden  v.  Bradbear,  12  Ves.  466,  it  was  held  by  the 
M.  R.,  that  although  an  auctioneer's  receipt  for  the  purchase-money  may  amount 
to  a  sufficient  note  or  memorandum  of  an  agreement  within  the  statute,  yet,  for 
that  jyurpose,  the  receipt  must  contain  w^ithin  itself,  or  by  reference  to  something 
else,  what  the  agreement  is.  This  doctrine  had  previously  been  strongly  intima- 
ted by  Lord  Eldon,  in  Coles  v.  Trecothick,  9  Ves.  252,  253.  The  application  of' 
these  pi'inciples  to  the  case  before  the  court  seems  decisive  against  the  plaintiff". 
The  only  written  memoranda  of  the  original  contract  are  found  in  the  defendant's 
proposal  and  the  plaintifTs  receipt,  which  are  considered  by  the  plaintilf  as  form- 
ing one  instrument.  The  absolute  insufficiency  ox  these  documents,  to  constitute 
any  definite  contract  of  themselves,  appeai-s  best  from  simply  reciting  them.. 
They  are  as  follows  :  *  The  most  is  3,700,  subject  to  3,000  mortgage  No  taxes 
or  other  liens  (except  the  mortgage),  will  be  allowed.  Received  ten  dollars  oa 
account  of  the  purchase.  The  mortgage  to  be  removed  from  the  Fifth  sti-eet  lot  as 
soon  as  the  title  is  made,  without  delay.  R.  A.  Parrish,  for  Isaac  Koons,  R.  T.' 
Can  anything  be  extracted  from  such  papers  fi-om  w'hich  a  court  of  chancery 
can  advisedly  decree  a  specific  performance '?  "Where  is  the  estate  bargained 
for?  What  is  the  quantity  of  land  to  be  conveyed?  What  is  the  kind  of 
estate  to  be  conveyed  ?  Without  associating  these  papers  with  the  parol 
evidence  in  the  case,  it  is  impossible  to  extract  anything  intelligible  fi-om 
them.  This  is,  as  has  been  seen,  wholly  inadmissible.  Evei-y  agi-eemant 
which  is  required  by  the  statute  of  frauds  to  be  in  writing,  must  be  certain  in 
itself,  or  capable  of  being  made  so  by  reference  to  something  else  whei-eby  the 
terms  can  be  ascertained  with  reasonable  precision,  or  it  cannot  be  carried  into 
effect."  Although  this  decision  was  probably  con-ect  upon  the  facts,  yet  the 
general  doctrine  is  stated  somewhat  too  bi-oadly,  and  in  a  manner  hardly  recon- 
cilable with  several  of  the  recent  cases,  American  and  English,  quoted  in  the 
present  section,  and  in  that  which  treats  of  "Completeness."  It  is  not  strictly 
accurate  to  say  that  the  subject-matter  must  be  absolutely  certain  from  the 
writing  itself,  or  by  a  reference  to  some  other  writing.  The  true  j-ule  is,  that  the 
situation  of  the  parties  and  of  the  surrounding  circumstances,  when  the  contract 
was  made,  can  be  sho\vn  by  parol  evidence,  so  that  the  court  may  be  placed  in 
the  position  of  the  parties  themselves  ;  and  \Uhe.n  the  subject-matter  is  identified,' 
and  the  terms  appear  reasonably  certain,  r.t  is  enough.  The  question,  what  kind 
of  estate  is  conveyed  ?  is  answered  by  the  rule  that  in  an  agreement  to  convey, 
silent  in  respect  to  the  estnte,  it  is  imi)li.<»<l  that  the  vendor  is  to  convey  the  whole 
estate  which  he  has — the  fee. 

237 


228  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

ing  circumstances  at  the  time  of  concluding  the  contract,  so  that  the 
court  may  be  put  into  the  position  of  the  parties,  may  see  with  their 
eyes,  and  may  understand  the  force  and  application  of  the  hmgnage 
employed  by  them.  In  this  manner  the  subject-matter  may  always 
— as  in  the  interpretation  of  a  will  or  a  deed — be  ascertained  and 
identified.  For  example,  a  contract  by  which  the  vendor  agreed  to 
sell  "  my  mill,"  or  even  "  the  mill,"  would  be  made  sufficiently  certain, 
and  the  subject-matter  clearly  identified,  by  proof,  that  at  the  time 
the  vendor  owned  a  mill  and  but  one  mill.  Such  a  description  would 
then  be  as  unmistakable  as  the  most  elaborate  method  of  fixing  and 
locating  the  structure.  In  fact,  however  detailed  the  description, 
there  must  always  be  a  resort  to  some  parol  evidence,  either  in  the 
form  of  direct  proof,  or  of  tacit  admission  or  assumption  by  the 
parties.(l) 


Second  Group. 


Those  incidents  and  qualities  which  do  not  primarily  involve  the  validity  of 
the  contract,  but  which  directly  affect  the  right  to  the  equitable  remedy 
upon  the  principle  that  he  who  seeks  equity  must  do  equity. 

SECTION  VII. 

The  contract  must  be  mutual. 

Section  162.  The  requisite  of  mutuality,  taken  in  its  most  general 
sense,  includes  both  a  mutuality  of  legal  right  and  a  mutuality  in 
the  equitable  remedy.  So  far  as  it  relates  to  the  legal  rights  of  the 
parties,  this  quality  belongs  more  properly  to  the  class  discussed  in 
the  preceding  sections,  since  it  may  directly  affect  the  validity  of 

(1)  Fish  V.  Hubbard,  21  Wend.  652  ;  Robeson  v.  Hornbaker,  2  Green  Ch.  60 ; 
Aldridge  v.  Eshleraan,  10  "Wright,  420  ;  Barry  v.  Coombe,  1  Peters,  640.  In  the 
last-named  case  the  description  of  the  pi'operty  sold  was  "  your  half  E.  B.  wharf." 
In  a  suit  for  a  specific  performance,  the  uncertainty  of  this  description  being  urged 
as  a  defense,  the  court  said  :  "  That  for  anything  which  appeared  on  the  face  of 
the  instrument,  '  E.  B.  wharf,'  may  be  as  definitive  a  description  of  h)cality  as 
'  F.  sti-eet ;'  and  then  there  would  be  no  ambiguity,  unless  the  vendor  had  more 
than  one  house  on  F.  street."  See.  however,  the  case  of  Hammer  v.  McEldowney, 
10  "Wright,  334,  where  the  court  refused  to  enforce  a  contract  for  the  sale  of  "the 
houses  on  Smith  field  street,"  although  it  was  shown  that  the  defendant  owned  two 
houses  on  that  street,  and  no  more.  There  were,  however,  some  other  circum- 
stances which  the  court  thought  rendered  the  contract  uncertain  as  to  the  amount 
of  the  land  intended  to  be  sold  ;  but  the  case  stands  in  marked  opposition  to  the 
general  current  of  authonty  upon  this  subject. 
238 


THE   CONTRACT  MUST  BE   MUTUAL.  229 

contracts.  Practically,  liowever,  it  is  the  mutuality  in  the  ri^^ht  of 
the  respective  parties  to  the  equitable  remedy  with  which  wo  are  more 
immediately  concerned  in  cases  of  specific  performance,  and  this  has 
no  neceHnary  connection  with  the  legal  validity  of  the  agreement.  For 
this  reason,  and  to  avoid  a  useless  repetition,  I  shall  depart  somewhat 
from  a  strictly  logical  arrangement,  and  discuss  the  entire  subject  in 
the  present  connection.  ' 

Hec.  1G8.  It  has  been  frequently  laid  down  as  the  general  rule  gov- 
-erning  cases  of  specific  performance,  although,  as  will  be  seen,  there 
are  many  exceptions,  that,  as  a  condition  to  granting  the  equitable 
relief,  the  contract  must  be  mutual  in  both  the  senses  above  described; 
that  is,  the  contract  must  be  of  such  a  nature  that  both  a  right  arises 
from  its  terms  in  favor  of  either  party  against  the  other,  while  the 
corresponding  obligation  rests  upon  each  towards  the  other  ;  and  also 
that  either  party  is  entitled  to  the  equitable  remedy  of  a  specific  exe- 
<;ution  of  such  obligation  against  the  other  contracting  party.  It  is 
not  then  sufiicient,  in  general,  that  a  valid  and  binding  agreement 
exists,  and  that  an  action  at  law  for  damages  will  lie  in  favor  of  either 
party  for  a  breach  by  the  other  ;  the  peculiarly  distinctive  feature  of 
the  equitable  doctrine  is,  that  the  remedial  right  to  a  specific  perform- 
ance must  be  mutual.  If,  therefore,  from  the  nature  or  form  of  the 
contract  itself,  from  the  relations  of  the  parties,  from  the  personal  in- 
capacity of  one  of  them,  or  from  any  other  cause,  the  agreement 
devolves  no  obligation  at  all  upon  one  of  the  parties,  or  if  it  cannot 
be  specifically  enforced  against  him,  then  and  for  that  reason  he  is 
not,  in  general,  entitled  to  the  remedy  of  a  specific  performance 
against  his  adversary  party,  although  otherwise  there  may  be  no 
obstacle  arising,  either  from  the  terms  of  the  contract  or  from  his  per- 
sonal status  and  relations,  to  an  enforcement  of  the  relief  against  the 
latter  individually. (1) 

(1)  Bromley  v.  JefFevies,  2  Vern.  415  ;  Rog^erst).  Saunders,  16  Me.  92  ;  Benedicts. 
Lynch,  1  Johns.  Ch  370  ;  German  v.  Machin,  6  Paige,  288 ;  Woodward  v.  Harris, 
2  Bai-b.  439  ;  Phillip.s  v.  Berger,  2  Barb.  611  ;  8  Bai-b.  527  ;  Bodine  v.  Glading-, 
21  Pa.  St.  50  ;  Duvall  v.  Myers,  2  Md.  Ch.  401 ;  Tyson  v.  Watts,  1  Md.  Ch.  13 ; 
7  Gill.  124 ;  Beard  v.  Linthicum,  1  Md.  Ch.  345 ;  McMiirtrie  v.  Bennette.  Harring-. 
Ch.  124 ;  Hawley  v.  Sheldon,  Haj-i-ing-.  Ch.  420 ;  Cabeen  ?).  Gordori,  1  Hill  Ch. 
51  ;  Bronson  v.  Cahill,  4  McLean,  19  ;  Reese  •?).  Reese.  41  Md.  554  ;  Marlile  Co.  v. 
Ripley,  10  Wall.  3159 ;  Meason  v.    Kaine,  13  P.  F.  Smith,  335;  CJeiger  v.  Green, 

4  Gill.  472,  476 ;   Moore  v.  Fitz   Randolph,  6    Leigh,  175  ;   [Mayger   v.  Cruse, 

5  Mont.  485,  497;  Ducie  v.  Ford,  8  Mont.  233,  240;  Ilarrisburg-  Ba,se-Ball 
Club  V.  Athletic  Ass'n,  8  Pa.  C.  C.  R.  337 ;  Irwin  v.  Bailey,  72  Ala.  467  ;  Palmer 
V.  Gould  (N  Y.),  39  N.  E.  378  (.Ian.  15,1895);  Dufft).  Hopkins,  33  Fed.  Rep. 
599  ;  Sturgis  v.  Galinds,  59  Cal.  28.]  In  Duvall  v.  Myers,  supra,  this  general 
doctrine  was  thus  stated  by  the  court :  "  The  right  to  a  specific  execution 
of  a  contract,  so  far  as  the  question  of  mutuality  is  concerned,  tiepends  upon 
•whether  the  agreement  itself  is  obligatory  upon  both  parties,  so  that  upon 
the  application  of  either  against  the  other,  the  court  would  coerce  a  specific  per- 

239 


230  SPECIFIC   PKHFOKMAACE    Ob    CONTRACTS. 

Sec.  164.  Among  the  most  frequent  illustrations  of  tliis  doctrine,  a 
contract  between  an  infant  and  an  adult  cannot  be  specifically  en- 
forced ;  because,  as  the  remedy  will  not  be  decreed  against  the  infant, 
it  cannot  be  awarded  in  his  favor.(l)  Where  a  vendor  had,  at  the 
time  of  making  the  agreement,  no  estate  in  the  land  which  he  con- 
tracted to  convey,  so  that  a  specific  performance  could  not  then  be 
enforced  against  him,  this  want  of  mutuality  in  the  remedy  furnishes 
a  sufficient  defense  to  the  purchaser  against  any  suit  which  may  be 
brought  by  the  vendor  after  he  has  obtained  the  title. (2)  There  is, 
also,  a  large  class  of  contracts  in  Avhich  the  stipulations  on  the  part  of 
the  plaintiff  provide  for  the  doing  of  personal,  confidential,  or  con- 
tinuous acts,  such  as  the  discharge  of  official  or  quasi-ofiicial  duties, 
the  performance  of  fiduciary  functions,  like  those  of  agency,  the  con- 
struction, maintaining,  or  operating  of  railways  and  other  works  of 
a  similarly  extensive  character,  all  of  w^hich  are  in  general  beyond  the 
competency  of  a  court  of  equity  to  specifically  execute  by  its  decree, 
while  the  stipulations  on  the  part  of  the  defendant  call  for  acts  of  a 
more  simple,  single,  and  direct  nature — perhaps,  even,  the  mere  pay- 

formance.  A  party,  not  bound  by  the  agreement  itself,  has  no  i-ight  to  call  upon 
this  court  to  enforce  performance  ag-ainst  the  other  contracting  party  by  express- 
ing his  willingness  in  his  bill  to  pe'-foi-in  his  part  of  the  agreement.  His  right  to 
the  aid  of  the  court  does  not  dejiend  upon  his  subsequent  offer  to  perform  the 
contract  on  his  part,  but  upon  its  originally  obligatory  character."  This  doctrinie 
is  affii-med  by  a  multitude  of  judicial  decisions;  but  there  are  so  many  well- 
established  exceptions,  embracing  large  and  important  classes  of  agreements,  that 
the  rule  of  mutuality,  especially  in  i-espect  to  the  obligation,  cannot  be  called 
universal.  See  Richards  u.  Green,  8  C.  E.  Green,  32,  35 ;  Justice  v.  Lang,  42  N. 
Y.  493.  It  may  be  stated,  however,  as  a  general  proposition,  that  whenever  the 
contract  was  intended  to  bind  both  of  the  parties,  and  for  any  reason  one  of  them 
is  not  bound,  he  cannot  compel  performance  by  the  other.  See  Batman  v. 
Porter,  100  Mass.  337  ;  SuUings  v.  Sullings,  9  Allen,  234.  [The  mutuality  may  be 
inferred  from  circumstances  if  not  set  out  in  the  contract.  Wilbourn  v.  Bishoj), 
62  Miss.  341.] 

(1)  Flight  V.  BoUand,  4  Russ.  298  ;  Blanchard  v.  Detroit  R.  R.,  31  Mich.  44. 
It  has  been  held  in  Ireland,  that  a  contract  of  sale  by  a  husband  and  wife  as 
vendors,  and  a  third  person  as  vendee,  is  not  bad  for  want  of  mutuality,  and  may- 
be enforced  by  the  vendors.     Fennelly  v.  Anderson,  1  Ir.  Ch.  R.  706. 

(2)  Hoggart  v.  Scott,  1  R.  &  My.  293;  [Brewer  v.  Broadwood,  22  Ch. 
D.  105.]  In  a  suit  for  a  specitic  ^performance  brought  by  the  vendors  in 
a  land  contract,  it  appeared  that  a  part  of  the  plaintifis  only  had  agreed 
to  make  a  good  and  sufficient  title  ;  this  want  of  mutuality  in  the  obligation  was 
held  a  ground  for  denying  the  relief  against  the  vendee.  Bronson  v.  Cahill,  4 
McLean,  19.  In  Tyson  v.  Watts,  1  Md.  Ch.  13,  the  defendant  B.  had  given  the 
plaintiff  A.  the  right  to  work  as  well  as  to  explore  the  minerals  on  his  farm  ;  but 
A.  was  only  bound  to  explore,  and  not  to  work  the  mines.  As  it  was  evident,  from, 
the  whole  contract,  that  B.'s  main  object  was  to  have  the  mines  on  his  land 
worked,  this  absence  of  mutuality  of  obligation,  in  respect  to  the  most  important 
particular,  was  held  to  be  a  defense  and  reason  for  not  enforcing  the  contract. 

240 


THH    COyriiACT   MUST  BE  MUTUAL.  'IM 

ment  of  money — all  of  whicli  uro  clearly  enforceablo  in  aperie  l>y  the 
orditiary  judicial  proceeding  In  agrt^ements  of  thi>s  kind,  tliere  is  no 
mutuality  in  the  right  to  the  equitable  remedy,  although  each  party 
may  be  clearly  bound  by  a  legal  obligation,  and,  therefore,  a  bpecitic 
performance  is  not  granted  even  against  those  parties  wliose  under- 
takings are,  in  themselves,  easily  susceptible  of  enforcement  by  the 
court. (1) 

(1)  Whoro  tho  act.?  to  ho  cImik-  by  tho  plaintitf  wero  i)ersonal.  coiitiilontiiil,  and 
semi-ofiicial.  Pickering  t\  liislidp  of  Ely,  2  V.  &  C.  C  C  24i).  [Sec;  also,  (ii-immer 
V.  Carlton,  93  Cal.  189 ;  Wakchani  i».  Barker,  82  Cal.  4i) ;  Sturgi-s  i\  Galindo,  5U 
Cal.  28  ;  Ahvorlh  v.  iSeymoui-,  -12  Minn.  526;  Pinyle  /).  Conner,  <j()  Mii-h.  187; 
Peacock  v.  Dewesee,  73  Cra.  570  ;  Simon  v.  Wildt,  84  Kan.  157.]  Cases  in  which 
the  acts  to  be  done  by  the  iihiintitt'  \vere  continuous,  extensive,  etc  ,  lilvi;  the  con- 
struction or  operatinii"  of  railways  or  other  works,  Johnson  v.  Slirr\vsli:i:-v  &  I3ir- 
niinirhani  Ry.  Co.,  3  De  G.  M.  &  Ct.  914  ;  Stocker  v  WedikM-bnni,  3  K  &  J.  393; 
Or.l  V.  Johnston,  1  Jui-.  (X.  S  )  1003  ;  lliil  v  Cunnnv\  1  Beav.  540 ;  V;in  Sittai-t  v. 
Van  Sittart,  4  K.  &  J.  62;  [Lattin  v.  llazariU  91  Cal.  87  (buililinir  ami  operation 
of  a  railroad  l\>r  a  certain  term  of  years) ;  Appeal  of  Bailou,  133  Pa  St.  64  (or- 
ganizing a  railroad  company,  etc  ) ;  Pullman  Palace-Car  Co.  ■??  Texas  Sc  V  R.  Co., 
4  Woods  C  C  317 1;  but  see  Hope  v.  Hope,  22  Beav.  364,  per  Sir  J.  Romilly,  M. 
R.  ;  and  S  C.  on  App.  26  L.  J.  Ch.  417;  Blackett  v.  Bates,  L.  R,  1  Ch.  117, 
reversing  2  H.  &  ISl.  270  This  was  a  suit  to  enforce  an  awai-d  whi(;h  provided 
that  defendant  should  execute  to  the  i)hiintift"  a  lease  (in  terms  set  out  in  the 
award)  of  so  much  of  a  certain  r.ailway  as  was  on  defendant's  land  ;  and  the 
award  went  on  to  provide — but  these  provisions  were  not  inserted  in  saiil  lease — 
that  defendant  should  have  the  right  of  i-unning  cai-riages  over  the  whole  of 
plaintiff's  road,  on  certain  terms,  and  might  require  plaintiff  to  supply  the  engine 
posver,  and  tli'at  plaintiff  should  keep  the  whole  road  in  g(X)d  rejjain  The  plain- 
tiff suing  for  a  specific  performance  of  defendant's  pai-t,  which  was  simply  to 
execute  the  lease,  and  coulil,  therefore,  be  easily  enforced  ;  the  court  held  that 
the  provisions  in  favor  of  defendant  could  not  be  execufcil  at  once,  but  re(piircd 
certain  duties  to  be  continuously  ]ierformed  by  the  jilainfiff,  and  that  these  could 
not  be  specifically  enforced  by  the  court ;  and  as  there  was  no  mutuality  in  the 
remedy,  the  award  could  not  be  siiecifically  performed  against  the  defendant 
Mei'chant's  Trading  Co.  v  Banner,  L.  R  12  Ec].  18.  It  should  l)e  remembered 
that  contracts  for  construction  of  works  will  sometimes  be  enforced,  and  in  such 
cases  there  would  be  no  want  of  mutuality  [In  the  case  of  Inm  Age  Publishing 
Co.  V.  Western  Union  Tel.  Co  ,  83  Ala.  498,  the  court  was  called  upon  to  enforce 
against  the  defendant  a  contract  which  imposed  upon  the  complainant  the  oblig.i- 
tion  to  perform  personal  services  as  agent  and  corresi)on(Umt  of  the  Associated 
Press  at  a  certain  jilace,  which  it  had  contracted  to  ])erform  from  year  to  year. 
Relief  was  refused  on  the  ground,  among  others,  of  l;ick  of  nuituality  in  the 
remedy.  "The  duty  involves  the  exercise  of  special  skill,  judgment  and  discre- 
tion, lieing  intellectual  as  well  as  mechanical  in  its  character.  These  duties  are 
also  continuous  in  their  nature,  and  of  iudeiinite  duration.  There  can  be  no 
specific  performance  affirmatively  of  such  duties  by  a  court  of  eijuity."]  The 
following  are  some  fui-ther  examples  of  agreements  lacking  the  element  of 
mutuality  :  A  tenant-in-tail,  it  is  held,  cannot  enforce  a  contract  entered  into  by 
a  tenant  for  life,  t)ecause  the  conti'act  could  not  be  enf'orce(l  against  such  tenant- 
in-tail.  Ricketts  v.  Bell,  1  De  G.  &  Sni.  3^5;  Armigei-  r.  Clarke,  Bunb  111 
Again,  A.  having  agreed  with  B.  not  to  join  in  barring  an  entail,  and  B  having 
agreed  to  convey  to  A.  certain  i)arts  of  the  estate  on  his  entering  into  p()sse.s.sion. 
it  was  held  that  the  contract  on  his  purt  could  not  be  specifically  enforced  against 
A.,  and,  therefcn-e,  a  specific  performance  of  B.'s  agreement  to  convey  was 
refus(>d  when  demanded  by  A.'s  i-e])i-esentatives.  Hamilton  v.  Grant,  3  Dow, 
33;  Collins  D.  Plummer,  1  P.  Wms.  104.  When  a  tenant  lor  life,  ai-tiug  under 
a  power  to  lease,  has  entered  into  an  agi-eement  to  gi-.ant  a  lease  wi:h  a 
third  person,  whether  thei-e  is  a  mutuality  of  ol)ligati()u  between  this  thii-d 
jierson  and  the  remainderman,  was  donl^ted  in  some  early  cases;  see  Campbell 
V.  Leach,  Aml)l.  749,  jxir  1)\<:  Guey,  C.  J. ;  but  it  is  now  seftle<l  that  such  a 
contract  can  be  enforced  by  either  of  these  pai-ties — the  lessee  and  the  remain- 
derman against  the  othei".  Shanmm  v.  Bradstreet,  1  S(;h.  &  Let".  52,  64.  Sec, 
also,  as  illusti-ating  the  rule  that  the  eipiifable  i-emedy  must,  in  general,  be 
mutualj  Mastin  v.  Halley,  61  Mo.  196,  the  only  con.sideration  of  a  contract  to  con- 

241 


232  SPECIFIC    PKRFORMANCE    OF   CONTRACTS. 

Sec.  165.  Mutuality  in  the  equitable  remedy  is  so  essential 
that  the  converse  of  the  j)ropositioii  above  stated  is  well  established, 
and  it  is  a  familiar  doctrine  that  if  the  right  to  the  specific  performance 
of  a  contract  exists  at  all,  it  must  be  mutual ;  tlie  remedy  must  be 
alike  attainable  by  both  parties  to  the  agreement. (1)  For  this  reason 
the  purchaser's  obligation  in  a  contract  for  the  sale  of  land,  although 
nothing  ra.ore,  perhaps,  than  a  liability  to  pay  a  certain  sum  of 
money,(2)  may  always  be  enforced  by  a  suit  in  equity  on  behalf  of 
the  vendor,  since  the  purchaser  may,  in  the  same  manner,  obtain  the 
performance  of  the  vendor's  duty  to  convey.(3)  On  the  same  principle 
a  person  who  has  agreed  to  sell  things  in  action — such  as  certain 
claims  against  a  bankrupt  debtor,(4)  or  an  annuity, (5)  or  a  patent- 
right — (6j  may  enforce  the  purchaser's  promise  to  pay  the  price  by  a 

vey  land,  was  the  vendee's  undertaking-  to  erect  "a  certain  building"  thereon  ; 
as  his  undertaliing-  could  not  be  specitically  enforced  by  the  vendor,  it  was  held 
that  he  was  not  entitled  to  a  speciiic  perfoi-mance  against  the  vendor.  In  Schroe- 
der  V,  Gemeinder,  10  Nov.  o.3.3.  it  was  held  that  optional  contracts  and  covenants 
to  lease  or  to  convey  land,  will  be  specitically  enfoi"ced,  aKhough  the  remedy  ia 
not  mutual,  if  such  contract  or  covenant  is  shown  to  have  been  made  upon  a  fair 
consideration,  and  where  it  forms  part  of  an  agreement  or  lease  which  constitutes 
its  consideration.  Allen  v.  Cerro  Goido  Co.,  40  Iowa,  349.  A  contract  for  the  con- 
veyance of  land  in  consideration  of  personal  services  to  be  performed  by  the 
vendee,  held  enforceable  after  the  sei-vices  had  been  rendered.  In  Chamberlin 
V.  Robertson,  31  Iowa,  408,  the  ^'endee,  in  a  contract  for  the  sale  of  land,  was  a 
married  woman  ;  she  had  paid  part  of  the  purchase-money,  taken  possession,  and 
made  improvements  ;  held,  the  vendor  could  not  rely  on  any  want  of  mutuality 
en  the  ground  of  the  vendee's  being  a  married  woman  ,•  the  contract  could  be 
enforced  against  her,  and  she  could  enforce  it  against  the  vendor.  It  may  be 
remembered  that  by  the  statutes  of  Iowa  a  married  woman  is  clothed  with  a 
large  capacity  to  make  contracts  as  though  she  were  a  single  woman.  In  Tarr  v. 
Scott,  4  Brews.  (Pa.)  49,  it  was  hehl,  that  as  each  party  must  have  a  right  to  the 
remedy  against  the  other,  a  married  woman  cannot  enforce  the  specific  pei'form- 
ance  of  a  contract  to  which  she  is  a  i^irty  In  Pennsylvania  the  statutes  have 
not  changed  the  common-law  cai^acity  of  the  wife  to  the  same  extent  as  in  Iowa.' 
[Chilhowie  Iron  Co.  v.  Gardiner,  79  Va.  305 ;  vShenandoah  Val.  R.  Co.  v.  Dunlap, 
86  Va.  75  ;  where  the  husband  agreed  to  sell  his  wife's  lands,  and  husband  and 
wife  brought  a  bill  for  spccitic  performance  of  the  agreement,  this  was  i-efused  as 
the  remedy  could  not  have  been  enforced  at  the  suit  of  the  jiurchaser  against 
the  wife.] 

(1)  Adderly  v.  Dixon,  1  S.  &  S.  607  ;  Withy  v.  Cottle,  1  S.  &  S.  174 :  Kenney  v. 
Wexham,  6  Mad.  355,  357  ;  Cogent  v.  Gibson,  33  Bcav.  557 ;  Old  Colony  R.  R.  -y. 
Evans,  6  Gray,  25  ;  Cook  v.  Grant,  IG  S.  &  R.  108,  202.  [Gee,  also,  Iron  Age 
Publishing  Co.  v  Western  Union  Telegraph  Co.,  83  Ala.  498;  3  Am.  St.  Rep.  758.] 

(2)  That  such  a  suit  in  equity  by  the  vendor  is  really  an  action  for  a  money 
demand,  see  Thames  Plate  Glass  Co.  v.  Land,  etc.,  Tel.  Co.,  L.  R.  11  Eq.  248, 
per  Mali>-s,  V.  C. 

(3)  Clifford  v.  Turrell,  1  Y.  &  C.  C.  C.  138, 150 ;  Walker  v.  Eastci-n  Counties  Ry. 
Co.,  6  Hare,  594  ;  Dabell  v.  Crawford,  1  Pa.  L.  J.  Rep.  155 ;  [Raymond  v.  San 
Gabriel  Val.  Land  &  Water  Co.,  4  C.  C.  A.  89 ;  10  U.  S.  App.  001,  53  Fed.  Rep. 
883  ;  Jackens  v.  Nicholson,  70  Ga.  193  ;  and  see  cases  cited  ante,  notes  to  §  6]  In 
Massachusetts,  however,  under  the  limiled  equity  jurisdiction  conferred  by  stat- 
ute, it  is  held  that  an  equity  suit  cannot  bo  maintained  by  a  \-endor  where  the 
contract  was  to  con\-ey  land  for  a  certain  price,  on  the  ground  that  he  has  an  ade- 
quate remedy  at  law.     Jones  v  Newhall,  115  Mass.  249. 

(4)  Adderly  v.  Dixon,  1  S.  &  S.  C07. 

(5)  Withy  V   Cot'Je,  1  S.  &  S.  174  ;  Kenney  v.  Wexham,  6  Mad.  355,  357. 

(6)  Cogent  v.  Gibson,  33  Beav.  557. 

242 


THE    CONTRACT  MUST  UK   Ml'ILAL.  233 

suit  ill  equity,  because   the  purchaser,  on  his  part,  cati  compel  an 
assignment  of  the  things  in  action  ugri'cd  to  he  sold. 

8ec.  166.  The  time  at  -which  the  mutuality  must  esdst,  in  order 
that  it  may  produce  these  binding  effects,  is  that  of  concluding  the 
agreement  between  the  parties.  The  contract  should  properly  be  mutual 
ab  initio.  Two  questions  ratiy  arise  concerning  the  time :  1.  Whether 
the  quality  of  mutuality,  originally  existing,  must  continue  to  the 
time  of  bringing  the  suit  or  rendering  the  decree  ?  2.  Whether,  if 
the  quality  did  not  originally  exist,  the  objection  would  be  obviated 
by  subsequent  acts  or  events  which  render  the  obligation  and  remedy 
mutual  ?  In  respect  to  the  first  of  these  questions,  it  is  settled,  upon 
the  clearest  principles  of  justice,  that  if  the  agreement  possesses  the 
requisite  element  of  mutuality  when  it  is  concluded,  so  that  the  i)lain- 
tiff  can  then  maintain  a  suit  for  its  specific  execution,  his  right  to 
such  relief  will  not  be  subsequently  defeated  or  diminished,  because 
the  defendant,  through  his  delay  or  other  acts  or  omissions,  afterwards 
loses  the  right  to  enforce  the  contract  against  the  plaintiff,  which  he 
originally  had  ;  a  valid  defense  cannot  thus  arise  from  the  defendant's 
own  laches. (1)  The  same  is  true,  it  seems,  when  the  original  mutu- 
ality of  remedy  is  lost  by  the  subsequent  happening  of  some  contin- 
gent event  not  resulting  from  or  connected  with  the  conduct  of  either 
of  the  parties.  In  regard  to  the  second  of  the  questions  proposed 
above,  if  the  agreement,  when  concluded,  lacks  the  mutuality  of  right 
and  obligation,  no  subsequent  event  or  act  of  the  party  seeking  to 
enforce  it,  can  obviate  the  objection  and  render  it  capable  of  specific 
execution.  The  right  of  a  party  to  the  equitable  remedy  depends 
upon  the  fact  that  the  agreement  was  originally  binding  upon  him, 
and  not  upon  his  subsequent  willingness  or  offer  to  be  bound  and  to 
perform  the  contract  on  his  own  part. (2)  In  respect  to  the  remedy, 
however,  a  different  rule  prevails — or,  at  least,  the  rule  is  by  no  means 
so  general  and  strict  as  that  concerning  the  mutuality  of  right  and 
obligation.  It  is,  for  example,  a  familiar  doctrine  that  a  vendor  who, 
at  the  time  of  entering  into  the  contract,  has  no  valid  title  to  the  land 
he  has  undertaken  ta  convey,  and  who  is,  therefore,  then  unable  to 

(1)  South  Eastern  Ry.  Co.  v.  Knott,  10  Hare,  122  ;  Hawkes  v.  Eastern  Counties 
Ry.  Co.,  1  DeG.  M.  &  G.  737,  75;")  ;  5  11.  L.  Cas.  331,  3U5  ;  Walton  v.  Coul.son,  1 
McLean,  120.  But  see  Stuart  v.  London  &  North  Western  Ry.  Co.,  1  DeG.  M.  & 
G.  721,  per  Lord  Cranwokth  ;  [Carskaddon  v.  Kennedy,  40  N.  J.  Eq.  2r)a.] 

(2)  Duvall  V.  Myers,  2  Md.  Ch.  401 ;  Bodine  v.  Glading-,  21  Pa,  St.  50.  This 
rule,  as  well  as  the  previous  ones  stated  in  the  text,  it  should  be  remembered, 
though  general  in  their  application,  are  subject  to  the  exceptions  which  will  be 
discussed  in  the  subsequent  paragraphs  of  the  present  section. 

243 


234  SPECIFIC   rERFOHMAXCK    OF   COXTRACTS. 

perform,  may,  upon  his  subsequently  acquiring  or  perfecting  the  title, 
both  enforce  the  agreement  against  the  vendee,  and  be  compelled  to 
execute  it  at  the  suit  of  the  purchaser.(l)  There  is  a  clear  distinction 
in  principle  between  the  mutuality  of  right  and  obligation — that  is> 
the  binding  eflBcacy  of  the  agreement  upon  both  the  parties,  and  the 
mutuality  simply  of  the  equitable  remedy — that  is,  the  right  of  both 
the  parties  to  obtain  a  specific  performance.  If  the  first  does  not  exist. 
when  the  parties  have  gone  through  the  form  of  concluding  their  con- 
tract, it  can  hardly  be  said  that  any  agreement  at  all  has  been  made ;, 
any  subsequent  act,  omission,  or  event  which  should  create  a  mutuality 
of  obligation,  would  virtually  be  the  making  of  a  new  agreement.. 
The  mutuality  of  the  equitable  remedy,  on  the  other  hand,  does  not 
belong  to  the  essence  of  the  contract.  An  agreement  may  be  perfect 
in  its  obligation  upon  both  the  parties,  and  yet  be  of  such  a  nature 
that  one  of  them  only  could  be  compelled,  by  a  decree  of  the  court,  to 
specifically  perform.  As  the  absence  of  this  kind  of  mutuality  does 
not  render  the  agreement  any  less  obligatory,  it  would  seem,  on  ijrin- 
ciple,  that  if  the  quality,  originally  lacking,  should  be  subsequently 
supplied,  in  any  practical  manner,  before  the  commencement  of  the 
suit,  or  even,  perhaps,  before  the  hearing,  the  objection  would  then 
be  removed,  and  a  specific  enforcement  would  be  thus  made  possible. 
For  example,  if  the  party  who  had  undertaken  to  do  acts,  the  per- 
formance of  which  could  not  be  specifically  compelled — such  as  the 
rendering  of  personal  services — should  fully  perform  all  that  he  had 
agreed  to  do,  and  should  then  seek  to  enforce  a  specific  execution  of 
the  contract  by  the  other,  it  would  seem,  on  principle,  that  all  obstacle: 
to  granting  the  relief  would  have  been  removed.  It  cannot  be  said,, 
however,  that  the  decisions  have  accepted  this  distinction,  although 
it  seems  to  have  been  acted  upon  in  some  of  the  cases. (2) 
Limitations  upon  the  doctrine  of  mutuality. 

Hec.  167.  To  the  doctrine  of  mutuality,  as  stated  and  discussed  in 
the  foregoing  paragraphs,  there  are  limitations  and  exceptions  of 

(1)  See  2^<Jstf  §§  341,  421,  where  this  topic  is  treated  at  large. 

(2)  See  Allen  v.  Cerro  Gordo  Co.,  40  Iowa,  349,  in  which  a  contract  by  the 
defendant  to  convey  land  in  consideration  of  personal  services  to  be  rendered  by 
the  plaintiff",  was  specifically  enforced  at  the  suit  of  the  vendee  after  the  stipulated 
services  had  been  performed  by  him.  Of  course,  the  defendant  could  not  have 
compelled  a  specific  execution  of  his  part  of  the  agi-eement  by  the  plaintiflf.  [See, 
to  the  same  effect,  Welch  v.  Wlielpley,  02  Mich.  15  ;  4  Am.  St.  Rep.  810 ;  Wilks 
V.  Georgia  Pacific  R.  R.  Co.,  79  Ala.  180,  where  the  unenforceable  condition  waa 
the,  construction  of  a  railway;  Minneapolis,  etc.,  Ry.  Co.  r.  Cox,  76  Iowa,  306- 
(construction  and  maintenance  of  a  railwav  station) :  Wisconsin,  etc.,  Ry.  Co.  v. 
Braham,  71  Iowa,  484  ;  Bigler  v.  Baker  (Nebr.),  58  N.  W.  1026  ;  Univeivsity  of 
Des  Moines  v.  Polk  Cy.  etc.,  Co.  (Iowa),  53  N.  W.  Rep.  1080.]  But,  jyer  contra, 
see  Cooper  v.  Pena,  24  Cal.  404.  were  unon  the  same  facts,  the  remedy  was. 
i-efused,  solely  upcra  the  gi-oimd  that  by  the  original  terms  of  the  contract  it  was 
not  mutual ;  the  plaintiff  could  not  have  been  compelled  to  perform  the  ser\dcea 
which  he  had  promised. 

244 


THE   CONTRACT  MUST  BE  MUTUAL.  235 

great  importance,  wliicli  vory  iiuich  narrow  its  application.  These 
exceptions  are  well  established;  many  of  Ihoni  aio  common  and 
familiar.  It  may  not  be  easy,  liowever,  to  formulate  any  rule  or  iirin- 
ciple  by  which  they  can  all  be  classified,  or  which  sliall  furnish  the 
means  of  determining,  with  certainty,  tlie  cases  in  which  they  arise. 
I  shall  collect  and  arrange  the  instances  which  have  been  settled  by 
the  decisions,  and  shall  endeavor,  if  iiossible,  to  ascertain  the  prin- 
ciple npon  which  they  depend. (1)  ' 

Unilateral  contracts. 

ISec.  108.  1.  The  lirst  class  of  contracts  in  which  the  equitable  rem- 
edy is  not  mutual,  and  in  which,  perhaps,  the  legal  obligation  may  be 
single,  although  not  necessarily  so,  comprises  those  which  are  unilateral 
in  form.  This  general  class  of  unilateral  contracts  embraces  many 
different  species.  It  includes  those  which  consist  of  a  promise  or 
promises  by  one  party  only,  made  upon  some  executed  consideration 
which  had  proceeded  from  the  promisee,  but  without  any  corresponding 
promise,  either  express  or  implied,  by  that  other  party.  Of  this  kind 
are  contracts  in  the  form  of  a  deed-poll,(2)  or  in  the  form  of  a  bond,(3) 
or  of  an  undertaking,(4)  all  of  which  may  be  specifically  enforced,  if 
falling  within  the  rules  otherwise  applicable  to  the  equitable  remedy. 

Sec.  169.  Another  most  important  and  comprehensive  species  of 
these  contracts  unilateral  in  form,  and  which  can  be  specifically 
enforced  by  the  one  for  whose  benefit  they  are  made,  although  there 
is  no  mutuality  in  the  remedy,  embraces  those  in  which  the  consid- 
eration is  not  passed  and  executed,  but  future,  consisting  in  acts  to 
be  done  by  the  promisee,  although  the  agreements  themselves  contain 
no  express  promise  on  his  part  that  he  will  do  the  acts.  Among  the 
examples  of  this  species  are  those  contracts  by  which  the  party,  upon 
whom  alone  an  obligation  arising  from  the  express  stipulations  rests, 

(1)  That  a  contract  may  be  binding-  and  enforceable  in  equity,  although  there  is 
no  mutuality  of  obligation  resulting  from  the  express  terms  of  the  instrument,  is 
plain  from  the  following  very  familiar  examples.  A  covenant  to  stand  seized  is 
purely  a  unilateral  obligation,  but  will  be  enforced.  .  A  covenant  to  convey  on 
the  payment  of  a  sum  of  money  (like  the  ordinary  bond  to  convey)  is  binding, 
and  will  be  specifically  enfoi-ced,  on  the  assent  or  acceptance  of  the  one  to  whom 
the  covenant  is  made,  although  he  does  not,  by  any  terms  of  the  contj-act,  or  by 
any  promise,  bind  himself  to  pay  the  money.  Ewins  •?).  Gordon,  49  N.  H.  444 ; 
Jones  V.  Robhins,  29  Me.  3.'51 ;  Barnard  v.  Lee,  97  Ma.ss.  92 ;  Calvei-t  v.  Gordon,  1 
Man.  &  Ry.  494  ;  3  id.  424.  Such  a  pi-omise  need  not  be  under  seal.  A  written 
offer  to  sell,  or  lease,  or  convey  land  at  a  certain  price,  becomes  binding  and 
enforceable,  if  assented  to  before  it  is  withdrawn  by  the  party  to  whom  it  is 
made.  Boston  &  Me.  R.  R.  v.  Bartlott.  3  Cush.  224 ;  Mactiei-  v.  Frith,  fi  Wend. 
104  ;  Corson  v.  Mulvany,  13  Wright,  88,  99  ;  Perkins  v.  Iladsell,  ,f)0  111.  21G.  [See, 
also,  Wilks  v.  Georgia  Paintic  R.  R.  Co.,  79  Ala.  180,  18.'j,  and  cases  cited.] 

(2)  Otway  v.  Bi-aithwaite,  Finch.  40.'). 

(3)  Butle]-  V.  Powis,  2  Coll.  C.  C.  1.5G. 
<4)  Palmer  v.  Scott,  1  Russ.  &  My.  391. 

245 


236  SPECIFIC   PERFORMAyCE    OF   CONTRACTS. 

covenants  or  promises  to  do  or  to  forbear  from  some  specified  act 
upon  the  request  of  the  other,  and  those  by  which  the  party  making 
an  offer,  covenants  or  ])romises  to  do  or  to  omit  some  act  upon  the 
assent  or  acceptance  of  the  person  to  whom  the  offer  is  addressed,  and 
those  in  which  the  party  confers  an  option  upon  the  other.(l)  The 
contracts  of  this  kind  are,  in  reality,  conditional  agreements.  Upon 
the  happening-  of  the  condition — that  is,  upon  making  the  recpiest, 
giving  the  assent,  or  declaring  the  option — they  become  absolute,  and 

(1)  Chesterman  v.  Mann,  9  Hare.  206  ;  Hoinfray  v.  Fotherg-ill,  L.  R.  1  E.i.  567 
(a  right  of  pre-emption) ;  Bell  v.  Howard,  9  Mod.  BOi,  304  ;  Beatson  v.  Nicholson, 
6  Jur.  620.  Bonds  to  convey,  see  Jones  v.  Robbins,  29  Me.  351 ;  Ewins  v.  Gordon, 
49  N.  H.  444  ;  Barnard  v.  Lee,  97  Mass.  92 ;  Coi-son  v.  Mulvany,  13  Wright,  98  ; 
Gordon  v.  Calvert,  2  Sim.  253 ;  4  Russ.  581.  Stipulations  to  lease,  renew,  or  sell 
and  convey  upon  the  02ition  or  election  of  a  lessee,  see  Kerr  v.  Pui-dy,  50  Barb. 
24;  51  N.  Y.  629;  Kerr -?).  Day,  2  Harris,  112;  D' Arras  v.  Keyser,  2  Casey,  249  ; 
Napier  v.  Darlington,  20  P.  F.  Smith,  64 ;  Mauglin  v.  Perry,  35  Md.  352  ;  Souf- 
frain  v.  McDonald,  27  Ind.  269  ;  Willard  v.  Tayloe,  8  Wall.  557  ;  Moss  v.  Barton, 
L.  R.  1  Eq.  474  ;  Hei-sey  v.  Giblett,  18  Beav,  174 ;  Hawralty  v.  Warren,  3  C.  E, 
Green,  124;  [Waters  v.  Bew  (N.  J.  Eq),  29  Atl.  Rep.  590  (June  25,  1894).] 
It  is  perfectly  well  settled  that  unilateral  contracts,  giving-  options  and  thf 
like,  are  enforceable  after  the  jiroffered  conditions  have  been  accepted  by 
the  party  to  whom  the  offer  is  made,  although  he  was  under  no  obligation  to 
accept.  It  does  not  fall  within  the  scope  of  this  work  to  discuss,  with  any  full- 
ness, the  mutual  relations  and  obligations  of  the  two  parties  to  such  a  contract 
after  acceptance.  Even  though  the  plaintiff  is  not  bound  by  any  express  stipu- 
lation, an  equitable  duty  certainly  rests  upon  him,  and  when  he  seeks  perform- 
ance against  the  defendant,  the  court,  in  its  decree,  can  always  provide  for  a 
performance  on  Ms  ovm  part  as  the  prei-equisite  to  any  relief.  The  following  are 
some  further  illustrations  of  the  doctrine  as  found  in  recent  American  decisions. 
In  Perkins  v.  Hadsell,  50  111.  216,  it  is  held  that  a  written  contract  giving  the 
vendee  an  option  to  buy  land,  upon  the  performance  by  him  of  certain  conditions, 
namely,  entering  and  making  improvements,  may  be  specifically  enforced  against 
the  vendor,  after  the  performance  of  such  conditions  by  the  vendee ;  and  may 
also  be  then  assigned  in  equity,  and  enforced  by  the  assignee.  Schroeder  v. 
Gemeinder,  10  Nev.  355.  Unilateral  stipulations  and  covenants  giving  an  option 
to  lease  or  buy  land  will  be  specifically  enforced,  although  the  remedy  is  not 
mutual,  when  they  are  made  upon  a  fair  consideration.  Hall  v.  Center,  40  Cal, 
63.  A  covenant  in  a  lease  that  the  lessee  shall  have  the  privilege  of  purchasing 
the  pi-emises  for  a  certain  price,  on  or  before  the  expiration  of  the  term,  will  be 
specifically  enforced  against  the  lessor,  when  the  lessee  has,  during  the  term, 
signified  his  acceptance  and  offered  to  perform.  The  defense  being  the  want  of 
mutuality,  Wallace,  J.,  delivering  the  opinion  of  the  court,  said  (p.  67),  speaking 
of  the  general  rule  requii'ing  mutuality  :  "  But  the  exceptions  to  its  operation 
are  numerous.  Lord  Redbsdale,  in  Lawrenson  v.  Butlei",  1  Sch.  &  Lef.  13,  limits- 
its  application  to  a  case  'where  nothing  has  been  done  in  pursuance  of  the  agree- 
ment,' by  which  it  is  to  be  understood  that  though  an  agreement  may,  at  the  time 
it  was  entered  into,  lack  the  element  of  mutuality,  and  for  that  reason  may  not 
then  be  such  an  agreement  as  e(juity  wouhi  enforce,  yet  if  the  party  seeking 
relief  has  subsequently,  with  the  knowledge  and  the  expressed  tacit  consent  of 
the  other,  placed  himself  in  such  a  position  that  it  would  be  a  fraud  for  that  othei- 
to  refuse  to  perform,  equity  will  relieve."  To  the  same  effect  is  the  case  of 
De  Ruffe  v.  Muldrow,  16  Cal.  505,  and  especially  per  Baldwin,  J.,  at  page  513  ; 
also  Laffan  7v  Naglee.  9  Cal.  662  ;  Maughlin  v.  Perry,  35  Md.  352,  a  lessor  cov- 
enanted with  the  lessee,  his  assigns,  etc.,  to  convey  the  premises  for  a  specified 
246 


THE   CONTRACT  MUST  BE  MUTUAL.  237 

in  many  instancs  mutual  in  their  obligation.  In  the  face  of  sucli  a 
large  number  of  contracts  in  constant,  use  which  are  specifically 
enforced,  and  yet  in  respect  to  whidi  there  is  no  mutuality  in  this 
remedy,  it  might,  perhaps,  be  correct  to  state  the  general  doctriiK!  in 
the  following  form  :  Whenever  a  contract  is  of  such  a  form  and  nature 
that  it  contains  nuitual  executory  promises,  or  whenever  it  is  intended 
that  it  should  require  future  acts  or  omissions  from  each  of  the  parties, 
and  that  each  should  be  bound  to  such  acts  or  omissions  by  exi)res8 
undertakings,  then,  in  all  such  agreements,  there  must  be  both  the 

price,  at  any  time  during  the  term  ;  the  tiling  a  bill  for  aspecitic  performance,  with 
an  offer  to  pay  the  stipulated  pi-ice  by  an  assignee  of  the  lessee,  was  held  to  be  a  sutfi- 
cient  compliance  with  the  terms  of  the  covenant,  and  the  cos'enant  itself  would  b.i 
specifically  enforced.  Ewins  r.  Gordon,  49  N.  H.  444,  a  bond  to  convey,  signed 
^lone  by  the  vendoi",  and  containing  a  penalty,  is  an  agi-eeuient  to  convey  which 
will  be  specitically  enforced  against  him,  although  the  vendee  is  not  bound,  or 
has  not  performed,  provided  he  oif(»rs  performance,  the  perfoi-mauce  on  his  part 
can  be  secured  in  the  decree.  Smith  v>.  Fleekl's  appeal,  69  Pa.  St.  474.  A  con- 
tract signed  by  the  vendoi'  alone,  binding  him  to  sell,  but  giving  the  vendee  a 
specified  period  of  time  within  which  to  accept  or  to  refuse,  will,  after  a  timeljl 
acceptance  by  the  purchaser,  be  specifically  enforced  at  his  suit ;  to  the  same 
effect  is  Vassault  v.  E<lwards,  43  Cal.  458.  which  arose  upon  a  similar  contract, 
signed  alone  by  the  vendor,  and  binding  himself  to  sell,  but  giving  the  vendee 
twenty  days  within  which  to  accept  or  to  refuse.  See  especially  the  observations 
of  Rhodes,  J.,  pp.  464-466.  In  Cooper  v.  Pena,  21  Cal.  404,  defendant  made  a 
written  contract,  in  consideration  of  personal  services  to  be  rendered  by  the  plain- 
tiff, to  convey  to  the  plaintiff  certain  lands  ;  the  services  were  performe(i,  and  the 
plaintiff  brought  an  action  to  compel  a  conveyance,  but  the  relief  was  refused  on 
the  ground  that  the  remedy  must  be  mutual ;  that  the  mutuality  is  to  be  determined 
in  general  by  the  terms  of  the  contract  at  its  incejition,  and  that  the  defendant 
could  not  have  compelled  a  performance  by  the  plaintiff.  The  whole  doctrine  is 
•  discussed  at  length  by  Cope,  J.,  pp.  411-413  ;  but  compare  Allen  v.  Cerro  Gordo 
Co.,  40  Inwa,  349,  [ante,  §  166,  note].  The  effect  of  the  general  rule  respecting  mutu- 
ality, either  of  obligation  oi-  of  remedy,  is  considered  in  the  following  castas  ;  and 
I  think  it  very  clear,  that  the  rule  was  applied  with  much  more  strictness  and 
severity  in  the  older  than  in  the  later  decisions  ;' indeed,  the  rule,  so  far  as  it 
i-elates  to  the  mutuality  of  the  remedy  alone,  is  evidently  based  upon  no  principles 
of  abstract  i-ight  and  justice,  but,  at  most,  upon  notions  of  expediency  ;  and  the 
arguments  in  its  support  are  often  mere  repetitions  of  time-honored  verbal  form- 
ulas, which,  when  closely  analyzed,  are  found  to  have  little  or  no  real  force  and 
meaning.  Williston  v.  Williston,  41  Barb.  63.5  ;  White  v.  Schuyler,  1  Abb.  Pr. 
301  ;  Woodward  v.  Aspinwall,  3  Sandf.  272 ;  Woo<lward  v.  Harris,  2  Barb. 
439 ;  Phillips  v.  Berger,  8  Barb.  527 ;  German  v.  Machin,  6  Paige,  2SS ; 
Matter  of  Jane  Hunter,  1  Edw.  Ch.  1 ;  Parkhurst  ?>.  Van  Cortlandt,  1  Johns. 
Ch.  263;  14  Johns.  15;  Clason  v.  Bailey,  14  Johns.  4S4  ;  Hooker  v.  Pynchon, 
8  Gray,  550  ;  Old  Colony  R.  R.  v.  Evans,  6  Gray,  25,  31  ;  Dooley  ii.  Watson, 
1  Gray,  414 ;  Parker  v.  Perkins,  8  Cush.  318  ;  Murphy  v.  Marland,  8  Cush. 
575  ;  Plunkett  v.  Methodist  Epis.  Soc,  3  Cush.  561  ;  Western  R.  R.  v.  Bab- 
cock,  6  Met.  346,  353;  Ives  v.  Hazard,  4  R.  I.  25,  27;  City  of  Proviilence 
u  St.  John's  Lodge,  2  R.  I.  46,  59 ;  Rogers  v.  Saumlers,  16  Me.  92.  97,  101  ; 
Getchell  v.  Jewett,  4  Greenl.  3,50,  366  ;  Telfair  i\  Telfair,  2  Dessaus.  Ch.  271  ; 
Tyson  v.  Watts,  1  Md.  Ch.  13  ;  Duvall  ?\  Myer.s,  2  Md.  Ch.  401  ;  G.^iirer  v.  Green, 
4  Gill,  472  ;  Cabeen  v  Gordon,  1  Hill  Ch.  51  ;  Moore  v  Fitz  Randolph,  6  Leigh, 
175 ;  Bouchei-  v.  Van  Bitskiik.  2  A.  K.  Marsh.  346 ;  Hawley  v.  Sheldon.  Hairing. 
Ch.  420;  Bodine  v.   Glading,   21   Pa.   St.  .50;  Bronson    v.  Cahill,  4    McLean,  19; 

247 


238  SPECIFIC  PERFORMANCE   OF    COXTRACTS. 

mntuality  of  obligation  and  of  remedy ;  but  when  it  was  intended 
that,  the  contract  Khouhl,  in  its  express  terms,  be  binding  upon  one  of 
the  parties  alone,  it  onay  be  specifically  enforced  against  that  party, 
although  the  remedy  cannot  be  granted  to  him  against  the  promisee. 

Contracts  under  the  statute  of  frauds  signed  by  only  one  party. 

fc5EC.  170.  2.  The  second  general  exception  to  the  requirement  of 
mutuality  includes  all  those  agreements  which,  by  the  provisions  of  the 
statute  of  frauds,  nuist  be  in  writing,  and  which,  in  conformity  with 
the  overwhelming  weight  of  judicial  authority,  need  only  to  be  signed 
by  the  party  to  be  charged — that  is,  by  the  defendant  in  the  suit 
brought  upon  the  contract.  It  follows,  therefore,  that  the  plaintiff, 
who  has  not  signed  the  memorandum,  may  enforce  a  specific  perform- 
ance, although  no  relief  could  be  obtained  against  him  in  respect  of 
the  promises  made  therein  on  his  part.(l)  This  doctrine  is  firmly 
settled,  but  the  reasons  given  for  it  are  not  very  convincing.  Some 
cpses  have  explained  it  by  saying  that  the  statute  of  fi-auds  requires 
a  signature  by  one  party  only.(2)     This  is  undoubtedly  true  as  a  fact, 

Watt;-;  v.  Waddle,  302 ;  [Johnson  v.  Trippe,  33  Fed.  Rep.  530  ;  Wutts  v.  Kellar, 
(C.  C.  A.)  5G  Fed.  Rep.  1,  (per  Caldwell,  J.  :  "the  very  iiuipose  of  an  optional 
contract  of  this  nature  is  to  extinguish  this  mutuality  of  right,  and  vest  in  one 
of  the  parties  the  privilege  of  determining  whether  the  contract  shall  be  vitalized 
and  enforced.  An  option  to  buy  or  sell  land,  more  than  any  other  form  of  con- 
ti-act,  contemplates  a  specific  performance  of  its  terms  ;  and  it  is  the  right  to  have 
them  specifically  enforced  that  imparts  to  them  their  usefulness  and  value.  An 
option  to  buy  or  sell  a  town  lot  may  be  valuable  when  the  party  can  have  the 
contract  specifically  enforced,  but,  if  he  cannot  do  this,  and  must  resort  to  an 
action  at  law  for  damages,  his  option  in  most  cases  will  be  of  little  or  no  value. 
No  man  of  any  experience  in  the  law  would  esteem  an  option  on  a  lawsuit  for 
•in  imcertain  measin*e  of  damages  as  of  any  value  ") ;  Ilowland  v.  Bradley,  38 
N.  J.  Eq.  288  ;  Herrman  v.  Babcock,  103  Ind.  461  ;  Carson  v.  Mulvany,  49  Pa. 
St.  88  ;  McFarlane  v  Williams,  107  111.  33  ;  Bacon  v.  Ky,  Cent.  R.  Co.,  (Ky  )  25 
S.  W.  Rep.  747;  Waters  v.  Bew,  (N  J.  Ch.)  29  Atl.  Rep.  590;  Calanchini  v. 
Branstetter,  84  Cal.  249  ;  Wilks  v.  Georgia  Pac.  R.  R.  Co.,  79  Ala.  ISO,  185  ;  Brad- 
ford V.  Foster,  87  Tenn.  4  ;  Ross  v.  Parks,  93  Ala.  153 ;  Moses  v.  McClain,  82 
Ala.  370  ;  Newell's  Appeal,  100  Pa.  St.  513  ;  Yerkes  v.  Richards,  153  Pa.  St.  646 ; 
Frue  V.  Houghton,  6  Colo.  318,  324  ;  Brown  v.  Slea,  103  U  S.  828  ;  House  v.  Jack- 
son (Oreg.),  (April  24,  1893),  32  Pac.  Rep.  1027  ]  Cases  in  which  the  remedy  was 
refused  for  siiccial  reasons.  Buckmaster  v.  Thompson,  36  N.  Y.  558  (uncer- 
tainty) ;  Hawralty  v.   Warren,  3  C.   E.    Green,   1 24  (refusal  of  vendor's  wife_  to 


Wood  V.  Dickey,  (Va.)  17  S.  E.  Rep.  818  ;  Peacock  i).  Deweese,  73  Ga.  570._  Where 
the  contract  gave  the  lessee  a  right  to  terminate  the  lease  on  notice,  this  was  a 
bar  to  the  rent ;  Rurt  v.  Conrad,  47  Mich.  449.  In  Maynard  v.  Brown,  41  Mich. 
298,  ii  was  held  that  when  it  is  optional  for  the  vendor  to  convey  or  not,  he  can- 
not have  specific  performance.  So,  where  the  contract  gave  the  plaintiffs  the 
right  to  abandon  it  upon  giving  thirty  days'  notice  ;  Sturgis  v.  Galindo,  59  Cal. 
28.  See,  also,  Schroeder  v.  Gemeinder,  10  Nev  855  ;  Barker  v.  Critzer,  35  Kan. 
459  ;  Ellsworth  v.  Southern,  etc..  Extension  Co.,  31  Minn.  543.] 

(1)  Hatton  V.  Gray,  2  Cas.  in  Ch.  164  ;  Backhouse  v.  Crosby,  2  Eq.  Cas.  Abr.  32, 
pi.  44  ;  M(n-gan  v.  Ilolford,  1  Sm.  &  Gif.  101,  and  additional  cases  cited  ante,  §  75. 
In  New  York  and  some  of  the  other  states  it  is  expressly  provided,  that  in  con- 
tracts for  the  sale  of  any  interest  in  land,  the  memorandum  need  be  signed  only 
by  the  vendoi-,  and  in  tlie.sc  states  a  suit  can  be  maintained  against  the  vendee, 
although  he  has  not  signed,  jn-ovided  the  vendor  has  ;  while  no  suit  can  be  main- 
tained against  the  vi^ndee  who  has  signed,  unless  the  vendor  has  also  signed.  In 
other  words,  the  validity  of  the  contract  depends  upon  the  vendor's  subscription 
alone  ;  that  made,  the  ol)ligation  and  i-emedy  are  mutual.   See  cases  cited  ante,  §  75. 

(2)  See  Coleman  v.  Upcot,  5  Yin.  Al)r.  527,  ])1.  17  ;  Child  v.  Comber,  3  Sw.  423, 
n.  ;  Backhouse  v.  Mohun,  3  Sw.  434,  n. ;  Seton  v.  Slade  7  Ves.  265  ;  Lord  Ormond 
v.  Anderson.  2  Ball  &  B.  863. 

248 


THE  CONTRA  <  'T  .VUST  B E  MVTUA  L.  239 

but  it  wholly  fails  to  account  for  the  rulo  under  consideration.  It  does 
not  show  why  a  mere  compliance  with  a  requirement  of  this  statute 
should  override  a  general  principle  of  the  law  of  contracts  which  is 
completely  outside  of  that  enactment,  since  the  statute  of  frauds  lias 
no  necessary  connection  with  the  element  of  mutuality. (1)  The  reason 
commonly  given,  however,  is  that  the  plaintiff,  who  has  not  signed  the 
memorandum,  by  commgncing  a  suit  upon  it  waives  all  objection  to 
the  absence  of  mutuality,  nmkes  himself  liable  en  the  contract,  and 
thus,  in  fact,  renders  the  remedy  mutual,(2)  This  reason  does  not 
seem  to  be  entirely  satisfactory.  As  a  practical  result  from  the  statute 
of  frauds,  the  contract,  which  must  be  w' vitten  and  which  is  subscribed 
or  signed  by  one  party  only,  lacks  the  mutuality  of  obligation ;  and 
this  is  even  literally  true  in  all  those  states  whose  statutes  pronounce 
such  contracts  void;  and  the  objection  arising  from  the  absence  of  this 
essential  feature,  at  the  very  time  of  entering  into  an  agreement, 
cannot,  as  a  general  proposition,  be  waived  by  the  subsequent  consent 
or  act  of  the  party  who  is  not  bound.  It  is  on  the  whole,  best  to  con- 
cede that  the  doctrine  rests  upon  no  basis  of  principle ;  that  it  w^as 
arbitrarily  laid  down  by  the  earlier  decisions  which  interpreted  the 
statute,  and  has  been  followed  by  the  great  majority  of  subsequent 
cases ;  and  that  it  is  useless  to  account  for,  or  explain  it  by  reasons 
which  conflict  with  other  well-settled  rules. (H) 

Where  the  requisite  of  mutuality  is  -waived. 

Sec.  171.  3.  The  third  class  contains  all  those  contracts  in  which 
the  party  who,  for  some  reason,  is  not  originally  bound  by  their 
stipulation,  or  against  whom  the  equitable  remedy  cannot  be  obtained 
may,  by  his  subsequent  acts,  omissions,  or  assent,  waive  the  objec- 
tion arising  from  his  want  of  mutuality,  and  may  thereupon  enforce 
them  against  the  other  party.  The  cases  where  such  waiver  has 
been  permitted  are  quite  unlike  in  their  features ;  but  after  illus- 
trating them  by  examples,  it  ma}'  be  possible  to  extract  a  principle 
from  the  decisions  to  which  they  shall  all  conform.  1.  Where  a 
vendor  has  no  estate  in  the  land,  or  -where  his  title  is  imper- 

(1)  See,  on  this  subject,  Boys  v.  Ayerst,  6  Mad.  323,  per  Sir  John  Leach,  M.  R. 

(2)  Child  V.  Comber,  3  S\v.  423.  n.  ;  Seton  v.  Slade,  7  Ves.  26.5  ;  Fowle  v.  Fi-ee- 
man,  9  Ves.  3.")1  ;  Western  v.  Riussell,  3  V.  &  B.  192,  per  Sir  Wm.  Grant  ;  Martin 
v.  Mitchell,  2  J.  &  W.  413  ;  YWghi  v.  Bolland,  4  Russ.  298.  The  contract  must  be 
sig-ned  by  all  the  defendants  against  whom  its  enforcement  is  asked.  Mclntii-e  v. 
Bowdeii,  61  Me.  l.")3. 

(3)  The  whole  doctrine  that  a  memorandum  sig-ned  by  the  defendant — under 
that  form  of  the  statute  which  adopts  or  follows  Ihe  terms  of  the  Eng-lish  act— is 
siifKcient,  and  may  be  enforced  by  a  jilaintitf  who  has  not  signed,  has  been  .severely 
criticised  by  able  judges  and  courts,  ujion  the  gj-ound  that  it  oven-ides  the 
general  requisite  of  a  mutn.ality  in  the  obligation.  See  Lawrence  v.  Butler,  1  Sch. 
&  Lcf.  13,  per  Lord  Rkoksdat.k  ;  Davis  v.  Shields,  20  Wend.  362,  per  Vkkplanck, 
Senator,  an<i  cises  cited  ante,  §  T.'i 

24'.) 


240  Sl'EClFK^   PERFOIiA[AyCE    OF    COyTKAUTS. 

feet,  the  purchaser  has,  of  course,  a  perfect  defense  to  a  suit  for 
a  specific  performance  on  behalf  of  the  seller ;  he  will  not  be  forced 
to  accept  a  conveyance  of  a  title  or  interest  other  than  that  which 
he  contracted  to  buy.  But  if  the  vendee  in  such  a  case  investigates 
the  title,  takes  the  usual  steps  concerning  it,  and  joins  in  proceed- 
ings by  the  vendor  to  perfect  his  title  and  to  acquire  the  full  estate, 
he  will  be  compelled  to  accept  a  conveyance  after  the  vendor  has 
succeeded  in  completing  his  title,  and  obtaining  the  estate  which  was 
intended  by  their  agreement;  lie  cannot  then  [)revent  a  decree  by 
setting  up  the  original  lack  of  mutuality.(l)  It  should  be  carefully 
observed  that  the  mutuality  which  is  wanting  in  such  contracts  is  not 
that  of  obligation,  for  the  vendor  is  fully  bound  by  his  stipulation  to 
sell  and  convey  the  very  interest  described,  and  the  vendee  is  equally 
bound  to  accept  it.  The  mutuality  which  is  here  absent  is  entirely 
that  of  the  remedy,  since  it  is  physically  impossible  to  obtain  a  specific 
performance  by  compelling  the  vendor  to  convey  an  estate  which  he 
does  not  at  the  time  hold,  although  he  is  liable  from  the  outset  to  the 
legal  remedy  of  damages  for  a  breach  of  his  agreement. 

Sec.  172.     2.  The  second  case  of  waiver  includes  those  contracts 

(1)  Salisbury  v.  Hatcher,  2  Y.  &  C.  C.  C.  54  ;  Hoggart  v.  Scott,  1  R.  &  My.  293. 
This  case  is  the  exact  converse  of  the  one  to  be  subsequently  mentioned,  in  which 
the  vendee  enfoi-ces  the  contract  against  a  vendor  who  cannot  fully  perform.  In 
Murrell  v.  Goodyear,  1  DeG.  F.  &  J.  432,  it  is  held  that  if  the  purchaser  is  entitled 
at  all  to  insist  that  the  vendor's  having  only  a  pai'tial  interest  makes  the  contract 
void,  he  must  insist  upon  the  objection  at  once,  and  cannot  avail  himself  of  it  after 
having  treated  the  contract  as  good,  and  requii-ed  the  concurrence  of  the  persons 
■who  can  complete  the  title.  See  the  case  for  acts  of  the  vendee  which  shut  him 
oflF  from  objecting.  To  the  same  effect,  see,  also,  Westall  v.  Austin,  5  Ired.  Eq.  1  ; 
Kindley  v.  Gi-ay,  6  Ired.  Eq.  445.  Same  case  holds  that  a  vendor,  who  hona  fide 
sells  his  pi'operty,  believing  himself  absolute  owner,  when  he  has  in  fact  only  a 
partial  interest,  is  entitled  to  enforce  the  contract  if  he  can  perfect  his  title. 
Murrell  v.  Goodyear,  supra ;  Dresel  v.  Joi'dan,  104  Mass.  415,  says  :  "The  equit- 
able rule  is  established  by  numerous  authorities,  that  where  time  is  not  of  the 
essence  of  the  contract,  and  is  not  made  material  by  an  offer  to  fulfill  by  the  pur- 
chaser, and  a  i-equest  for  a  conveyance,  the  seller  will  be  allowed  reasonable  time 
and  opportunity  to  perfect  his  title,  however  defective  it  may  have  been  at  the 
time  of  the  agreement.  And  in  all  cases  it  is  sufficient  for  the  seller,  upon  a  con- 
tract made  in  good  faith,  if  he  is  able  to  make  the  stipulated  title  at  the  time 
when,  by  the  terms  of  the  agreement,  or  by  the  equities  of  the  particular  case,  he 
is  required  to  make  the  conveyance  in  order  to  entitle  himself  to  the  consider- 
ation." See  Richmond  v.  Gray,  3  Allen,  25  ;  Barnard  v.  Lee,  97  Mass.  92 ;  More 
V.  Smedburgh,  8  Paige,  600  ;  Purcell  v.  McCleary,  10  Gratt.  246  ;  Reeves  v. 
Dickey,  10  Gratt.  1:^8  ;  Jones  v.  Taylor,  7  Tex.  240  ;  Tison  v.  Smith,  8  Tex.  147. 
And  where  the  vendor  has  the  right  to  complete  his  title,  the  vendee  gains  noth- 
ing by  anticipating  him  and  perfecting  it  for  himself.  Westall  v.  Austin,  5  Ired. 
Eq.  1  ;  Kindley  v.  Gray,  6  Ired.  Eq.  445.  See  this  subject  discussed  at  large  in 
subsequent  sections  upon  pei-formance  by  the  plaintiff. 
25U 


THE   CONTRACT  MUST  liR  MUTUAL.  241 

■v^hich,   by   reason    of  some   special   and  personal   relations 
between  the  parties,  are  binding  upon  one  of  them  only,     if  the 

exeuiptiou  is  a  personal  one — that  is,  given  by  the  hiw  for  tlie  personal 
benefit  of  the  party  enjoying  it — he  may  disregard  it,  by  bringing  a 
suit  for  a  specific  performance  ;  ho  will  waive  both  his  personal  exemp- 
tion, and  the  absence  of  mutuality  which  it  produc(\s,  an<l  will  be  able 
to  enforce  the  agreement  against  the  other  contracting  party.(l)  The 
reasons  of  this  are  plain.  Although  the  mutuality  h(M-t;  wanting  is 
that  of  obligation,  its  absence  results  from  something  which  is  a  mcn^ly 
personal  privilege,  given  for  the  benefit  of  th»;  individual  party ;  a 
benefit  which  he  can  waive,  and  thus  render  himself  liable  without 
violating  any  motives  of  public  policy  or  any  general  principles  of  the 
law.  As  he  might  thus  waive  the  exemption  from  liability  which 
exists  in  his  own  favor,  he  is  permitted  to  enforce  the  agreement 
against  the  other  contracting  party,  the  suit  itself  being  considered 
as  a  waiver.  If  the  exemption  from  liability  and  consequent  want  of" 
mutuality  result  from  some  personal  incapacity  of  the  party — such  as 
infancy,  marriage,  and  the  like — they  cannot  be  thus  w'aived;  at  all 
events,  while  the  incapacity  continues. 

Sec.  17:^.  3.  The  third  species  embraces  cases  of  a  partial  per- 
formance by  the  vendor,  with  or  without  compensation  for  his  failure 
to  perform  in  full.  When  the  vendor  has  not  the  whole  estate  which  he 
agreed  to  sell,  or  when  his  title  to  it  is  partial  and  imperfect,  he  can- 
not, as  has  been  already  shown,  force  an  acceptance  upon  the  vendee, 
and  the  agreement  lacks  the  mutuality  of  the  equitable  remedy.  The 
purchaser  may,  however,  waive  this  objection,  and  compel  the  vendor 
to  convey  all  the  estate  or  title  which  he  actually  possesses  and  is 
able  to  transfer,  and  often  to  make  compensation  for  his  failure  to 
perform  the  agreement  according  to  its  literal  terms.  The  principle 
on  what  the  courts  proceed  in  granting  this  form  of  relief,  was  stated 

(1)  A  familiar  example  of  this  class  is  a  contract  of  sale  made  between  a  trus- 
tee and  his  beneficiary,  which  is  not  binding-  upon  thie  latter,  but  which  he  can, 
nevertheless,  enfoi-ce  aj^ainst  the  trustee,  the  suit  for  a  performance  being-  i-e- 
garded  as  a  waiver  and  ratification.  Ex  parte  Lacey,  6  Ves.  625.  A  contract  of 
sale,  made  by  a  voluntai-y  settler,  is  treated  in  like  manner  by  the  English  courts. 
The  voluntaiy  settler  cannot  enforce  against  the  vendee.  Smith  v.  Garland,  2 
Meriv.  123 ;  Johnson  7).  Legard,  T.  &  R.  281 ;  but  the  vendee  may  compel  a  spe- 
cific performance  by  the  settlei-.  Buckle  v  Mitchell,  18  Ves.  100.  A  contract  of 
sale  between  an  infant  and  an  adult  cannot  be  enforced  nf/ahist  the  infant,  nor  by 
him,  since  the  infant,  during  his  minority,  cannot  render  himself  liable  in  any 
manner,  and  so  cannot  obviate  the  want  of  mutuality  But  as  the  agreement  is 
not  void  but  only  voidable,  after  the  infant  comes  of  age  he  can.  of  course,  thea 
ratify  and  render  it  capable  of  specific  execution  at  the  suit  of  either  jiarty. 

251 


242  SPECIFIC  pkrFormasck  of  contracts. 

in  the  following  manner  oy  Lord  Eldon  :  "  If  a  man  having  partial 
iutt  rests  in  an  estate  chooses  to  enter  into  a  contract,  representing  it 
and  agreeing  to  sell  it  as  his  own,  it  is  not  competent  to  him  after- 
wards to  say,  though  ho  has  valuable  interests,  that  he  has  not  the 
entirity,  and  that  therefore  the  purchaser  shall  not  have  the  benefit 
of  his  contract.  For  the  purpose  of  this  jurisdiction,  the  person  con- 
tracting under  those  circumstances  is  bound  by  the  assertion  in  his 
contract ;  and  if  the  vendee  chooses  to  take  as  much  as  he  can  have, 
he  has  a  right  to  that  and  to  an  abatement ;  and  the  court  will  not 
hear  the  objection  by  the  vendor,  that  the  purchaser  cannot  have  the 
whole. "(1)  This  doctrine  is  one  of  great  practical  importance,  and  is 
constantly  applied  in  the  specific  execution  of  contracts,  and  I  shall 
have  occasion  to  treat  it  at  large  in  a  subsequent  chapter.(2) 

Sec.  174.  Although  the  doctrine  of  partial  enforcement,  with  com- 
pensation, when  the  vendor  cannot  fully  perform,  is  sustained  by 
repeated  adjudications,  it  has  met  with  a  severe  criticism,  and  even 
repudiation  from  one  eminent  equity  judge.  Lord  Redesdale,  in 
several  decisions  made  by  him  when  chancellor  of  Ireland,  restrained 
the  doctrine  within  very  narrow  limits,  and  refused  to  apply  it  in 
cases  similar  in  their  facts  to  several  which  are  cited  in  the  foregoing 
note. (3)     These  criticisms,  and  the  decisions  in  which  they  were  made, 

(1)  Mortlock  V.  Buller,  10  Ves   315,  per  Lord  Eldon. 

(2)  See  chapter  iii,  section  iv,  on  Partial  Performance  and  Compensation,  where 
the  subject  is  fully  discussed  in  all  its  applications,  and  with  all  its  exceptions  and 
limitations. 

(3)  Although  these  decisions  are  plainly  opposed  to  the  general  current  of 
authority,  yet,  as  they  are  frequently  cited,  especially  in  the  arguments  of  coun- 
sel, it  is  proper  to  describe  them.  One  of  them  (Hai-nett  v.  Yielding,  2  Sch.  & 
Let".  549,  553,  559),  involved  a  contract  by  a  life-tenant  acting  beyond  his  powers, 
which  Lord  Redesdale  refused  to  execute  even  partially.  He  said  :  "  I  think 
courts  of  equity  should  never  enforce  such  contracts,  whether  with  a  view  to  the 
party  himself  or  to  the  person  entitled  in  remainder.  In  the  first  place,  it  is 
unconscionable  in  the  tenant  for  life  to  execute  such  a  lease,  because  it  brings  an 
incumbrance  on  the  estate  of  the  remainderman,  and  puts  him  to  litigation  to  get  rid 
of  it ;  and  as  to  the  tenant  for  life  himself,  it  is  compelling  him  to  do  what  is  to  be  the 
foundation  of  a  future  action  for  damages,  if  he  die  before  the  twenty-one  years. 
The  court  will  never  do  this,  but  will  leave  the  party  at  once  to  bring  his  action  for 
damages.  And  I  also  conceive  that  this  sort  of  contract,  obtained  by  a  person  who 
knew  at  the  time  the  nature  of  the  title,  is  unconscionable  in  him,  as  he  makes 
himself  a  party  knowingly  to  that  which  is  a  fraud  on  the  remainderman  ;  and, 
under  such  circumstances,  he  has  no  claim  to  the  assistance  of  a  court  of  equity." 
In  another  case  (Lawrenson  v.  Butler,  1  Sch.  &  Lef.  13,  21),  a  tenant  for  life  agreed 
with  the  plaintiff  to  grant  a  lease,  which  he  could  not  do  without  the  consent  of 
trustees,  which  was  refused.  The  plaintiff  brought  a  suit  against  the  life-tenant, 
and  claimed  that  he  should  have  such  a  lease  as  the  defendant  was  able  to  grant 


THE   CONTRACT  MUST  li  H   FA  Hi    AM)  JUST.  243 

are  not  only  opposed  to  the  doctrine  of  other  rtuses,  both  prior  and 
subsequent  ;  tlieir  correctness  has  been  expressly  denied  by  modern 
equity  judges  of  the  highest  ability  and  eminence,  so  that  the 
authority  of  their  general  reasoning  may  b(i  c(»nsidered  as  completely 
destroyed.(l) 


SECTION  VIII. 

The  contract  must  be  fair,  equal,  aiid  just  in  its  terms. 

Section  175.  The  principle — he  who  seeks  equity  must  do  equity- 
underlying  all  the  special  rules  which  form  the  subject-matter  of  the 
second  group  of  sections,  has  already  been  discussed,  and  its  effect  upon 
the  equitable  remedy  of  specific  performance  described ;  I  need  only, 
therefore,  recapitulate  the  general  doctrine,  as  a  preliminary  to  an  in- 
vestigation of  its  various  applications  to  different  cases.  When  an  agree- 
ment is  tainted  with  fraud,  mistake,  misrepresentation,  concealment, 
illegality,  or  other  similar  defect,  which  constitutes  a  defense  in  bar  at 
law,  or  which  furnishes  grounds  for  a  recision  in  equity,  there  is,  in 
reality,  no  binding  contract,  and  in  this  respect  both  the  legal  and  the 
equitable  jurisdictions  are  governed  by  the  same  rules.  The  grand  and 
beneficial  principle,  whose  effects  we  are  now  to  investigate,  extends 
far  beyond  these  incidents  which  affect  the  validity  and  even  exist- 
ence of  agreements  ;  it  applies  to  contracts  which  are  valid,  and  which. 

out  of  his  own  estate.  Lord  Rbdesdalb  refused  to  grant  any  relief,  on  the  ground 
that  there  was  no  mutuality.  "  No  man  signs  an  agreement  but  under  r,  suppo- 
sition that  the  other  party  is  bound  as  well  as  himself,  and,  therefore,  if  the  other 
party  is  not  bound,  he  signs  it  under  a  mistake  ;"  and  he  insisted  that  the  doctrine 
of  partial  enfoi-cement  only  applied  where  the  plaintiff  on  the  faith  of  the  agree^ 
ment  has  put  himself  in  a  position  fi-om  which  he  cannot  extricate  himself,  and  is, 
therefore,  willing  to  forego  a  part  of  his  contract — where  in  short  he  would  sustain 
a  substantial  injuiy,  unless  he  could  obtain  whatever  i)ai-tial  execution  the  defends 
ant  is  able  to  give.  It  is  not,  pei-haps,  so  mTich  the  decisions  made  by  Loi-d 
Redesdai.e  upon  the  special  facts  in  these  cases,  which  are  questionable,  although 
doulit  has  been  thrown  upon  them  ;  it  is  rather  the  general  tendency  and  scope 
of  his  whole  argument,  which  ai-e  in  conflict  with  the  doctrine  as  to  a  jiartial 
enforcement  against  the  vendor  which  is  now  well  estal)lished 

(1)  See  Thomas  v.  Bering,  1  Ke.  74(5,  jx-r  Lord  Lanhdalb,  M.  R.  ;  Dyas  v. 
Cruise,  2  Jon.  &  Lat.  400,  487,  per  Lord  St.  Lkonards,  who,  speaking  of  the  deci- 
sion in  Lawrenson  v.  Butler,  said  :  "  I  doubt  whethei-  that  can  be  maintained  as 
the  law  of  the  court  where  there  is  no  fi-aud  in  the  transaction.  If  there  be  a 
bona  fide  intention  to  execute  the  powei',  and  the  contract  cannot  be  carried  into 
effect,  I  do  not  .see  why  the  interest  of  the  tenant  for  life  should  not  be  bound  to. 
the  extent  he  is  able  to  bind  it,  unless  there  be  some  inconvenience."  And  see. 
Neale  v.  Mackenzie.  1  Ke.  474. 

253 


244  SPECIFIC  PEUFORMANCE    OF  CONTRACTS. 

confessedly  create  legal  obligations ;  it  is  developed  in  its  practical 
operation  so  as  to  meet  and  counteract  every  jjossible  circumstance  and 
feature  of  unfairness,  inequality,  and  inequity.  The  principle,  that 
he  who  comes  into  the  court  seeking  equity — that  is,  seeking  to  obtain 
an  equitable  remedy — must  himself  do  equity,  means  not  only  that 
the  complainant  must  stand  in  conscientious  relations  towards  his 
adversary,  and  that  the  transaction  from  which  his  claim  arises  must 
be  fair  and  just  in  its  terms;  but,  also,  that  the  relief  obtained  must 
not  be  oppressive  nor  hard  upon  the  defendant,  and  must  be  so  shaped 
and  modified  as  to  recognize,  protect,  and  enforce  all  his  rights  arising 
from  the  same  subject-matter,  as  well  as  those  belonging  to  the 
plaintiff.  By  virtue  of  this  principle,  the  specific  performance  of  a 
contract  will  be  refused  when  the  plaintiff  has  obtained  the  agreement 
by  sharp  and  unscrupulous  practices,  by  overreaching,  by  non-dis- 
closure of  important  facts,  by  trickery,  by  taking  undue  advantage 
of  his  position,  or  by  any  other  means  which  are  unconscientious ;  and 
when  the  contract  itself  is  unfair,  one-sided,  unjust,  unconscionable,  or 
affected  by  any  other  such  inequitable  feature,  or  when  the  enforce- 
ment itself  would  be  oppressive  or  hard  upon  the  defendant,  or  would 
prevent  the  enjoyment  by  him  of  his  own  rights,  or  would  in  any 
other  manner  work  injustice.  The  requisite  of  mutuality  is  obviously 
involved  in  certain  phases  of  this  principle.  Unless  the  contract  and 
the  remedy  were  mutual,  they  would  be  one-sided,  unfair,  burdensome 
upon  the  defendant,  without  affording  him  an  opportunity  for  any 
corresponding  benefit,(l)  I  shall,  in  the  present  section,  discuss  the 
applications  of  this  doctrine  in  respect  to  the  terms  of  the  contract,  and 

(1)  See  ante,  chapter  1,  section  2,  and  cases  cited,  §  35,  (n).  Also,  Willan  V 
Willan,  16  Ves.  83,  per  Lord  Eldon  ;  Twining  v.  Morrice,  2  Bro.  C.  C.  326  ;  Savage 
V.  Brocksopp,  18  Ves.  335  ;  Davis  v.  Symonds,  1  Cox,  406  ;  Redshaw  v.  Bedford 
Level,  1  Ed.  346  ;  Revel  v.  Hussey,  2  Ball  &  B.  288  ;  Reese  v.  Reese,  41  Md.  554 ; 
Magraff  v.  Muir,  57  N.  Y.  155  ;  Crane  v.  DeCamp,  6  C.  E.  Green,  414  ;  Walker  v. 
Hill,  6  C.  E.  Green,  191  ;  Merritt  v.  Brown,  6  C.  E.  Gi-een.  40.1  ;  Cuff  v.  Doi-land, 
55  Bai-b.  481  ;  Bowman  u  Cunningham,  78  III.  48  ;  Taylor  v.  Merrill,  55  111.  52; 
Fitch  V.  Boyd,  55  111.  307  ;  Jackson  v.  A-shton,  11  Peters,  229  ;  McNeil  v.  Magee, 
5  Mason,  244  ;  Osgood  v.  Franklin,  2  Johns.  Ch.  23  ;  Minturn  v.  Seymour,  4  ib. 
497  ;  St.  John  v.  Benedict,  6  ib.  Ill ;  Acker  v.  Phoenix,  4  Paige,  305  ;  Clithej-all«. 
Ogilvie,  1  Dessaus.  Ch.  257  ;  Howard  v.  Moore,  4  Sneed,  317 ;  Barker  v.  May,  3 
J.  J.  Marsh  436.  [See,  also.  Foil's  Appeal,  91  Pa.  St.  434 ;  Tamm  v.  Lavalle,  92 
111.  263  ;  Hetfield  v.  Willey,  105  111.  286  ;  McElroy  v.  Maxwell,  101  Mo.  294  ;  Morgan 
V.  Hardy,  16  Nebr.  427  ;  Fitzpatrick  v^  Borland,  27  Hun,  291 ;  Hoch  v.  Cocks,  78 
Hun,  253  ;  Moon  v.  Crowder,  72  Ala.  79  ;  Carpenter  v.  Carpenter,  10  N.  Y.  Supp. 
486  ;  Ludlum  v.  Buckingham,  35  N.  J.  Eq.  71 ;  Stearns  v.  Beckham,  31  Grat.  379  ; 
Union  Coal  Co.  v.  McAdam,  38  Iowa,  6G3.]  It  necessarily  follows,  from  these 
equitable  incidents  and  features  of  the  contract,  that  a  less  strong  case  is  sufficient 
to  defeat  an  application  for  a  specific  performance  than  is  requisite  to  obtain  the 
remedy.  See  the  remarks  upon  this  point  of  Lord  Cottenham  in  Vigers  v.  Pike, 
,8  01.  &  Fin.  562,  645. 
254 


THE   COSTRACT  MUST  HE  FAIR   AXD  JUST.  245 

the  circumstances  under  which  it  is  concluded ;  and  shall,  in  the 
following-  section,  treat  of  the  same  doctrine  in  direct  connection  with 
the  remedy. 

Sec.  17(3.  The  inequitable  element  of  unfairness  which  shall  defeat 
1;he  remedy  of  specific  perfornuiuce  nuiy,  as  has  been  already  indi- 
cated, inhere  in  the  provisions  of  the  agreement  itself ;  or,  it  may 
have  existed  in  the  preliminary  negotiati6ns,  relations  of  the  parties, 
and  other  circumstances  preceding  or  accompanying  tlie  conclusion 
of  the  contract,  and  parol  evidence  is  admissible  to  establish  the  latter 
■condition. (1)  These  two  aspects  of  the  subject  will  be  separately 
treated  in  the  order  here  state<l. 

First.  The  contract  itself.  The  time  ^tvhen  the  unfairness,  etc., 
must  exist. 
•  Sec.  177.  1.  The  question  to  be  answered  is :  To  what  time  in 
the  history  and  progress  of  a  contract  must  the  element  of  fairness  be 
referred,  so  that  if  it  then  exists  no  objection  can  be  raised  to  a  specific 
performance  based  upon  the  principle  under  discussion  ?  If  the 
agreement  possesses  all  the  elements  of  fairness  both  in  its  terms  and 
in  its  surrounding  circumstances  at  the  time  when  it  is  entered  into, 
is  this  requisite  forever  satisfied,  so  that  no  inequality,  one-sidedness, 
hardship  arising  from  subsequent  and  at  the  outset  unforeseen  events, 
or  change  of  relations  and  circumstances,  shall  avail  to  prevent  a 
specific  enforcement  ?  Or,  notwithstanding  the  original  fairness  and 
■equality,  may  the  equitable  remedy  still  be  refused  because  an  unex- 
pected alteration  of  circumstances  or  happening  of  untoward  events 
has  rendered  the  contract  unfair,  burdensome,  or  unequal,  and  its 
■execution  by  the  court  harsh  and  inequitable  ?  There  is  on  this  point 
a  direct  conflict  among  the  authorities.  According  to  one  opinion, 
the  first  of  these  questions  should  be  affirmatively  answered  ;  accord- 
ing to  the  other,  the  second.  Certain  cases  hold  the  doctrine  that  ifa 
contract  is  fair  and  unobjectionable  at  its  inception,  no  change  of 
circumstances  or  relations  or  events  however  unexpected,  and  however 
much  inequality  and  hardship  they  may  produce  in  the  operation  of 
the  agreement,  shall  constitute  a  sufficient  ground  for  denying  the 
remedy  of  specific  performance. (2)  Other  decisions  declare  that  this 
rule,  although,  perhaps,  correct  in  the  main,  is  subject  to  exception, 

(1)  Davis  V.  Symonds,  1  Cox,  402. 

(2)  Mr.  Fry  lays  down  this  pi-oposition  without  limitation  or  exception,  both 
with  respect  to  the  fairne's'*  of  the  contract  and  the  hardship  of  its  execution.  See 
Fry  on  Spec.  Pei-fm.,  ^)  2''5.  252 ;  Pickei-ing- 1\  Pickering:,  2  Beav.  5t5  ;  Fi-ank  v. 
Frank,  1  Cas.  in  Ch.  84  ;  Lawton  v.  Campion,  LS  Beav.  87  ;  hardship.  Lawder  v. 
Biachford.  Beat.  5  >2  ;  Webb  v.  Direct  London  &  Portsmouth  Ry.  Co.,  9  Ha.  129; 
Low  V.  Treadwell,  3  Fairf.  441  ;  Marble  Co.  v.  Ripley,  10  Wall.  339.  [See,  also, 
Prospect  Park,  etc.,  R.  Co.  v.  Coney  Island,  etc.,  Ry.  Co.,  (N.  Y.)  30  N.  E.  Rep. 
17  (Dec.  11,  1894)  ] 

255 


246  SPECIFIC   PUR  FORMA. XCK    OF   CONTRACTS. 

and  that  subsequent  events  and  changing  circumstances  may  so  effect 
the  equity  of  a  conti-act  as  to  prevent  its  judicial  euforceraent.(l) 

(1)  Judg'e  Story  maintains  this  opinion.  Ecj.  Jtir.,  §§  750,  77tj ;  Willanl  v.  Toyloe, 
8  Wall.  r)57  ;  and  see  Stone  v.  Pratt,  25  111.  25;  Hale  v.  Wilkinson,  21  Gratt.  75. 
There  is  a  very  cnrious  (iisagreenient  in  two  recent  decisions  by  the  United  States 
supreme  court.  In  Willard  t\  Tayloe,  supra,  the  question  was  directly  presented, 
and  made  the  very  7'atio  decidendi.  A  (contract  for  the  leasing  of  a  hotel,  in  Wash- 
ington, witli  power  to  the  lessee  of  buying  it  after  ten  years,  at  a  specified  price. 
It  %vas  conceded  that  the  contract  was  perfectly  fair  in  every  i-espect,  the  price 
ample,  etc.  Before  the  time  for  buying  the  war  began,  the  projierty  rose  vastly 
in  value,  much  more  than  was  expected,  and  at  same  time  legal-tender  notes  were 
greatly  depreciated.  The  vendor  refusing  to  convey  for  the  price  tendered  in 
legal-tender  notes,  the  vendee  brought  suit  for  a  specific  performance.  Held,  that 
although  the  contract  was  perfectly  fair  in  its  inception,  yet  as  its  enforcement  had 
become  inequitable  by  subsequent  and  unexpected  events,  which  could  not  have 
been  contemplated  by  the  pai-ties,  the  court  would  not  enforce  it  without  impos- 
ing conditions  on  the  plaintiff.  A  specific  performance  was,  therefore,  refused 
unless  the  plaintiff  would  pay  the  iirice  in  gold.  In  support  of  the  position  that 
subsequent  events  might  thus  effect  the  remedy,  the  court  cited  City  of  London 
V.  Nash,  1  Ves.  Sen.  12  ;  Faine  v.  Brown,  cited  in  Ramsden  v.  Hylton,  2  Ves. 
Sen.  306.  (See  the  extract  from  the  opinion  ante,  in  §  35.)  The  court,  except  twa 
judges,  united  in  this  opinion,  so  that  it  was  a  decision  directly  necessary  to  sus- 
tain the  judgment  which  the  court  pronounced.  Shortly  after  the  case  of  Marble 
Co.  V.  Ripley,  10  Wall.  339,  came  before  the  same  court.  A  contract  was  sought 
to  be  enforced,  and  it  w-as  objecte<l  that,  though  fair  in  the  inception,  a  change  of 
circumstances  had  made  it  very  one-sided  and  unfair  as  against  the  pai-ty  oppos- 
ing the  relief.  The  opinion  was  given  by  Strong,  J.  (the  former  one  by  Field,  J.), 
and  after  stating  the  claim  and  the  defense,  he  says,  page  356  :  "  It  is  by  no  means 
clear  that  a  court  of  equity  Avill  refuse  to  decree  the  specific  pei-formance  of  a 
conti-act,  fair  when  it  was  made,  but  which  had  become  a  hard  one  by  the  force  of 
subsequent  circumstances  or  changing  events."  (Citing  Fry,  uhi.  S7ip.)  "Judge 
Story,  indeed,  states  the  rule  somewhat  differently  (§§  750,  776),  and  there  are 
some  cases  that  support  his  statement ;  but  the  rule,  as  stated  by  Fry,  must  be 
apjilicable  to  contracts  that  do  not  look  to  a  completed  performance  within  a 
defined  and  reasonable  time,  but  contemplate  a  continuous  performance  extend- 
ing through  an  indefinite  number  of  years  or  perpetually."  The  case,  however, 
was  decided  on  entirely  other  grounds ;  the  relief  was  refused  for  different 
reasons,  so  that  these  observations  were  entirely  o5iie?'.  Although  there  is  no  con- 
flict between  the  conclusion  to  which  Judge  Strong  finally  comes — he  class  of 
contracts  to  which  he  limits  the  rule — and  the  prior  decision  in  Willard  v.  Tayloe, 
yet  it  is  very  remarkable  that  not  the  slightest  reference  is  made  to  a  case, 
decided  by  the  same  court  so  short  a  time  before,  in  which  the  general  doctrine 
■was  expressly  laid  tlown  contrary  to  the  position  maintained  by  Mr.  Fry.  In 
Stone  t).  Pratt,  25  III.  25,  the  specific  performance  of  a  contract  of  sale  was 
refused,  because  on  account  of  circumstances  and  transactions  hajipening  after 
its  execution,  which,  however,  had  been  all  done  or  caused  by  the  plaintiff's  con- 
duct, the  enforcement  would  work  great  hardship  to  the  defendant.  The  opinion 
does  not  advei-t  to  the  question  now  under  discussion,  and  the  fact  that  the  hard- 
ship was  caused  by  the  plaintifTs  inequitable  acts  distinguishes  the  case,  aTul 
prevents  it  from  being  an  illustration  of  or  an  authority  upon  the  general  rule. 
(See  case  and  opinion,  ante,  §  35.)  [See,  also,  Ramsay  v.  Gheen,  99  N.  C.  215  (an 
unexpected  death  held  a  ground  for  refusing  to  enforce  a  contract  to  convey  a 
farm  in  return  for  care  of  the  deceased).] 
256 


THE  cosri:.\i-r  m(  sr  in-:  faiu  a.\i>  just.  247 

Sec.  178.  Tlio  ^cutMul  proposition  that  if  contracts  are  fair,  fupial 
and  equitable  in  their  inception,  no  unfairness,  ine(iuality  or  hardship 
ai'ising  from  subsequent  events  liowever  luiforseen,  or  clum^-e  in 
circumstances  however  unexijocted,  can  avail  to  prevent  a  spccilic 
performance,  must,  as  a})pears  clear  from  a  com})arison  of  the  authori- 
ties, be  mocUHed  by  adding  certain  limit^ations  and  exceptions.  It 
is  clear  that  if  the  subsequent  events  and  changed  circumstances 
which  produce  the  unfairness  or  hardship  in  the  conti-act,  or  in  its 
enforcement,  as  against  the  defendant,  are  caused  by  tlie  plaintifl''s 
own  wrongful  or  inequitable  acts  or  omissions,  a  sufficient  groinid  is 
thereby  furnished  for  refusing  to  decree  a  specific  execution.(l)  The 
general  rule  above  stated,  that  the  element  of  fairness  must  be  referred 
to  the  inception  of  the  agi-eeraent,  is  certainly  applicable  to  all  con- 
tracts that  by  their  provisions  do  not  look  to  a  completed  performance 
within  a  defined  or  reasotiable  time,  but  contemjjlate  a  continuous  per- 
formance extending  through  an  indeiinite  number  of  years,  or  per- 
petually. For  in  such  agreements  the  parties  must  be  assumed  to 
have  provided  against  all  possible  contingencies. (2)  This  rule  is 
also  applicable  to  all  compromises,  and  especially  to  those  made  for 
the  purpose  of  arranging  and  settling  family  disputes,  controversies, 
and  claims.  Such  agreements  always  assume  some  existing  uncer- 
tainty, which  it  is  their  object  to  determine,  and  this  uncertainty 
may  consist  either  in  some  future  and  therefore  necessarily  contin- 
gent event,  or  in  the  present  ignorance  as  to  some  event  which  has 
happened,  but  the  nature  of  which  is  to  be  ascertained  in  the  future. (3) 
When  such  agreements  are  fairly  and  deliberately  made  by  parties 
who  have  equal  knowledge  and  means  of  obtaining  knowledge  of  the 
material  facts,  and  who  intend  thereby  to  fairly  and  fimiUy  settle 
their  respective  rights  and  claims,  they  will  be  sustained  and  enforced, 
although  the  subsequent  development  of  the  uncertain  facts  and 
events  should  be  different  from  what  the  parties  had  anticipated. (4) 

(1)  See  Stone  v.  Pratt,  25  111.  25.     {Ante,  §  35.) 

(2)  See  per  Stko.vc,  J.,  in  Marble  Co.  v.  Ripley,  10  Wall.  339,  356. 

(3)  As  illustrations  of  the  latter  kind,  is  the  disputed  question  whether  a  certain 
son  is  le^tiinate  or  not,  which  might  form  the  subject  of  a  family  compromise 
(Stapilton  v.  Stapilton,  1  Atk.  2)  ;  and  the  question  whether  an  uncle  had  made  a 
particular  disposition  of  his  propei-ty  by  will,  which  also  may  be  the  bjLsis  of 
compromise.     Heap  v.  long-e,  9  Ha.  90. 

(4)  This  doctrine  was  well  expressed  by  Lord  Lang  dale,  in  Pickci-iDfr  v.  Picker- 
ing-, 2  Beav.  31,  5(5,  as  follows:  "  When  parties  whose  rights  ai-e  (piestioiialile 
have  equal  knowlege  of  facts,  and  equal  means  of  ascertaining-  what  their  rights 
really  are,  and  they  faii-l.y  endeavor  to  settle  their  respective  i-ights  among  ihein- 

257 


248  SPECIFIC   J'ERFUIiMAXCE    OF  COyiRAC'lS. 

The  same  rule,  also,  applies  to  all  agreements  which  are  in  reality 
settlements  of  uncertainties  or  contingencies,  when  made  fairly  by 
parties  having  equal  opportunity  of  knowiug  and  judging. (1)  But 
it  is  an  indispensable  condition,  in  such  contracts,  that  the  event  or 
act  on  which  the  agreement  is  predicated,  be  at  the  time  of  its  con- 
clusion rea//^/ uncertain  and  equally  utikuown  to  both  the  parties.  If, 
therefore,  a  contract  purporting  to  be  of  this  aleatory  nature,  is  made 
between  one  w'ho  has  knowledge  of  the  event,  act,  or  fact  assumed  in 
the  negotiation  to  be  uncertain,  and  one  who  has  not — although  its 
provisions  may  be  so  drawn  as  to  expressly  throw  the  risk  upon  the 
ignorant  party — it  will  not  be  enforced  by  a  court  of  equity  at  the  suit 
of  the  one  who  possessed  the  knowledge,  and  would  acquire  an  advan- 

selves,  every  court  must  feel  disposed  to  support  the  conclusions  or  agreements 
to  which  they  may  fairly  come  at  the  time,  and  that  notwithstanding  the  subse- 
quent discovery  of  some  common  error."  Such  an  agreement  will  be  held  bind- 
ing and  enforced,  although  a  judicial  decision  should  afterwards  be  made,  show- 
ing that  the  rights  of  the  parties  were  different  from  what  they  had  been  supposed 
to  be,  or  showing  that  one  of  them  really  had  no  right  at  all,  and  so  nothing  to 
forego.  Lawton  v.  Campion,  18  Beav.  87 ;  Frank  v.  Frank,  1  Cas.  in  Ch.  84. 
[See,  also,  2  Pom.  Eq.  Jur.,  §§  850,  855.] 

(1)  The  following  are  some  examjjles.  In  Parker  v.  Palmer,  1  Cas.  in  Ch.  42, 
Parkei',  while  the  king  was  overthrown,  had  sold  a  lea«e,  which  he  held  for  three 
lives  from  a  dean  and  chapter,  to  Palmer,  the  price  being  £4320.  Subsequently, 
Palmer  agreed  that  if  the  vendor  would  abate  420?,  he  would  i-econvey  the  lease 
whenever  the  king  and  the  dean  and  chapter  should  be  restored.  The  abatement 
was  made,  and  after  the  restoration,  which  happened  soon  after,  the  vendee  was 
compelled  to  reconvey.  Here  the  vendee  made  his  bargain  with  his  eyes  open, 
assuming  all  the  risk  of  the  contingency,  and,  of  course,  having  great  confidence 
that  the  restoration  never  would  happen.  This  mistake  in  his  judgment  was  no 
reason  for  discharging  him  from  his  agreement.  In  Anon,  cited  in  Cooth  v.  Jack- 
son, 6  Ves.  24,  a  person  was  expecting  an  allotment  to  be  made  under  an 
inclosure  act,  and  he  agi-eed  to  sell  it  for  £20.  When  made,  it  turned  out  to  be 
worth  200Z,  and  he  was  compelled  to  pei-form.  Here  the  value  of  the  future  allot- 
ment was  wholly  vincertain — the  parties  acted  with  equal  knowledge — it  was  an 
aleatory  agreement.  If  there  had  been  any  fi-aud — if  the  vendee  had  known  the 
value  of  the  expected  allotment  and  concealed  it — of  course  the  decision  would  have 
been  different.  Again,  in  Ex  parte  Peak,  1  Mad.  346,  355,  a  contract  between  two 
partners,  made  without  fi-aud  or  concealment,  whereby  one  agreed  to  pay  the 
other  2,000?  for  his  share,  although  both  knew  the  firm  was  insolvent,  was  enforced. 
Sir  John  Leach,  putting  it  on  the  ground  that  the  purchaser  was  fairly  and 
delibei-ately  buying  a  chance :  "  Supposing  a  trade  attended  with  great  risk,  one 
partner  despairing,  the  other  confident  and  willing  to  buy  the  share  of  his  partner 
and  give  him  £2,000  for  it,  on  what  possible  ground  could  this  contract  be  invali- 
dated V  See  Haywood  v.  Cope,  4  Jur.  (N.  S. )  227.  Under  the  same  class  are 
those  contracts  in  which  a  vendor  agrees  to  sell  something  which  is  described  in 
g-eneral  terms,  the  extent  and  value  of  it  beiug  uncertain,  as  a  manor.  Baxendale 
1).  Seale,  19  Beav.  601 ;  and  those  in  which  the  vendor  sells  whatever  interest 
he  has,  which  may  afterwards  be  found  different  from  what  was  expected  at 
the  time.  [See,  also,  Shuee  v.  Shuee,  100  Ind.  477.] 
268 


THK    CONTRACT  MUST   UK    FAIR    AM)   JIST.  249 

tage  by  means  of  it.(l)  It.  is  also  necessary  that  the  uncertainty  in 
respect  of  whidi  Uie  contract  is  made,  should  be  iin(U'i-st(>od  and 
intended  by  both  parties  as  attaching  to  the  very  same  event  or  act 
which,  being  then  unknown  but  anticipated,  afterwards  happens. 
If,  therefore,  the  parties  contract  with  reference  to  a  certain  contin- 
gent or  doubtful  event,  and  some  other  unknown  fact,  to  which 
the  parties  had  not  referred,  and  in  respect  of  which  tliey  had  not 
contracted  subsequently  arises,  materially  altering  their  relations, 
and  rendering  an  execution  of  their  agreement  inequitable,  its  enforce- 
ment may,  under  such  circumstances,  be  denied. (2)  To  recapitulate, 
subsequent  events  or  change  of  circumstances  will  not  interfere  with 
the  enforcement  of  a  contract  fair  in  its  inception  ;  1,  if  it  was  intended 
by  its  terms  to  continue  in  force  for  an  indefinite  time  or  perpetually ; 
2,  if  it  was  based  upon  and  intended  to  settle  some  uncertainty, 
including  compromises,  family  arrangements,  sales  of  uncertain  or 

(1)  Smith  -».  Harrison,  26  L.  J.  Ch.  412,  per  Page  Wood,  V.  C,  is  a  very  instruc- 
tive illustration  of  this  rule.  A  written  contract  purported  to  sell  "  the  interest, 
if  any,"  of  F.  N.  in  certain  stock  in  trade  and  in  a  lease  ;  it  stated  that  there  was 
a  lien  of  lOOZ  on  the  lease,  and  added,  that  if  it  should  turn  out  that  F.  N.  had  no 
interest,  the  purchaser  should  have  no  claim  against  the  vendor  for  a  i-efunding  of 
the  purchase-price.  As  a  matter  of  fact,  by  i-eason  of  the  partnership  accounts  of 
the  tirm  of  which  F.  M .  was  a  member,  the  interest  of  F.  N.  sold  was  nothing — 
had  no  value  whatever,  and  the  sale  was  made  solely  as  a  preliminary  to  proceed- 
ings against  F.  N.'s  separate  estate.  This  condition  of  the  accounts  was  known  at 
the  time  of  the  contract  to  the  vendor,  but  the  vendee  had  no  knowledge  of  it,  and 
no  means  of  obtaining  any.  The  vendor  made  no  representations  as  to  the  value, 
but  the  vendee  paid  him  the  purchase-price.  This  contract  was  set  aside,  with 
costs,  at  the  suit  of  the  purchaser,  because  the  parties  did  not  stand  on  the  same 
footing  ;  the  purchaser,  from  ignorance,  was  buying  what  might  perhaps  be  worth 
nothing  or  something  ;  the  vendor  was  selling  what  was  actually  worth  nothing, 
and  what  he  knew  to  be  worth  nothing. 

(2)  As  in  Baxendale  v.  Seale,  19  Beav.  601.  The  vendor  contracted  to  sell  a 
manor,  stipulating  that  he  should  not  be  obliged  to  define  its  boundary.  [Here, 
therefore,  the  parties  understood  that  the  uncertainty,  with  respect  to  which  they 
conti-acted,  was  confined  to  the  matter  of  boundary.]  The  manor  turned  out  to 
comprise  a  valuable  property,  which  neither  pai-ty  before  knew  to  be  a  part  of  it. 
The  vendee,  who  had  sought  to  get  rid  of  the  contract,  then  sued  for  a  specific  per- 
formance. Sir  John  Romilly,  M.  R.,  held  that  the  parties  did  not  contemplate 
the  buying  and  selling  a  mere  doubtful  matter  (the  uncertainty  as  to  the  boundary 
being  only  an  irtidental  matter),  and  that  both  parties  made  the  contract  under- 
standing that  it  included  something  materially  different  from  what  it  would  be 
made  to  include,  and  what  would  be  conveyed  to  the  plaintiff,  by  a  specific  pei*- 
formance  as  demanded  by  the  plaintiff.  In  other  words,  neither  party  under- 
stood that  the  contract  embraced  this  valuable  property,  which  was  utterly 
unknown  when  the  contract  was  made,  and  which  could  not  be  covered  by  the 
uncertainty  in  respect  to  the  boundary,  A  performance  was,  th('r('for<%  deni<'<l, 
but  without  costs,  which  showed  that  the  jjlaintiff  was  not  in  faidt  in  suing.  [See, 
also.  Cowan  v.  Lapp,  81  Ala.  525,  when  performance  was  refused  of  a  compromise 
made  in  ignorance  of  an  important  fact.] 

1>59 


250  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

contingent  interests,  or  of  unknown  amounts,  and  the  like.  But  in 
the  latter  class,  the  subsequent  haiipening  of  an  unknown  event,  or 
matter  not  included  in  the  uncertainty  referred  to  by  the  parties,  may- 
be a  cause  for  refusing  to  grant  the  relief  of  specific  performance. 
With  respect  to  other  kinds  of  agreements,  although  fair  and  just 
when  made,  it  would  seem  from  many  decisions,  both  ancient  and 
modern,  that  their  enforcement  maybe  interfered  with  and  prevented 
by  subsequent  unforeseen  events,  which  introduce  a  sufficient  element 
of  inequality,  unfairness,  or  hardship.(l)  It  must  be  said,  however, 
that  this  proposition  is  not  universally  admitted. 

Incide-nts  which  aid  in  determining  the  fairness  of  the  contract 
itself,  age,  ignorance,  etc. 

Sec.  179.  II. — Returning  to  the  main  subject  of  discussion — the  fairr 
ness  of  the  contract  in  its  very  provisions  and  stipulations.  This  is, 
of  course,  to  be  finally  determined  by  an  examination  of  the  terras 
themselves ;  but  in  construing  and  interpreting  the  agreement  and 
judging  of  its  nature  and  effect,  the  court  may  be  incidentally  aided 
by  a  knowledge  of  all  the  circumstances  attending  its  inception.  It 
should  be  carefully  noticed  that  this  use  of  the  suiTounding  circum- 
stances, is  entirely  different  from  that  to  be  subsequently  considered, 
where  the  circumstances  themselves  constitute  the  substantial  features 
of  unfairness  which  prevent  the  granting  of  equitable  relief.  These 
facts,  although  not  of  themselves  sufficient  to  impeach  the  contract, 
and  even  though  wholly  free  from  wrong  or  blame,  may  furnish  a  clue 
for  the  right  understanding  of  the  agreement,  a  light  in  which  its  pro- 
visions must  be  read.  Among  these  attending  facts,  which  ordinarily 
aid  the  court  in  testing  the  fairness  of  the  contract,  and  which  may, 
therefore,  be  shown  by  extrinsic  evidence,  are  the  mental  feebleness 
of  a  party,  although  not  amounting  to  a  legal  incapacity ;  (2)  the  age, 
poverty  or  ignorance  of  the  parties ;  (3)  the  manner  of  entering  into 
the  contract ;  the  want  of  advice ;  the  inadequacy  of  the  price,  and 
many  other  analogous  circumstances. (4)  The  following  are  some  of 
the  most  common  incidents  which  necessarily  cast  a  doubt  upon  the 
fairness  of  a  contract,  which  lead  a  court  to  examine  its  terms  with 
the  utmost  care,  and  to  refuse  a  specific  performance  unless  all  doubt 
is  removed  by  the  clearest  demonstration  of  its  fairness.  Where 
the  defendant  against  whom  the  remedy  is  sought,  was,  at  the  time 

(1)  See  Willard  v.  Tayloe,  8  Wall.  557. 

(i)  Ciai-kson  v.  Hanway,  2  P.  Wins.  203  ;  Gartside  v.  Isherwood,  1  Bro.  C.  C. 
558.  [For  example,  an  agreement  made  by  an  aged  widow  on  the  day  after  her 
husband's  funeral,  when  she  was  in  great  mental  distress  to  sell  his  estate,  was 
not  enforced  ;  Elbei-t  v.  O'Neil,  102  Pa.  St.  302.] 

(3)  Fish  V.  Leser,  69  111.  394. 

(4)  Fishv.  Leser,  69  111.  894  ;  Bell  v.  Howai-d,  9  Mod.  302  ;  Martin  v.  MitchelU 
2  J.  &  W.  413,  423 ;  Stanley  v.  Robinson,  1  R.  &  My.  527. 

260 


THE   CONTRACT  MUST  BE  FAIR    A  SI)  J  VST.  251 

of  making  the  contract,  within  the  power  of  the  i)hiintirt',  sso  that  an 
indeptMuIent  action  and  free  exercise  of  judgnient  on  his  pai-t  would  ho 
virtually  impossible  or  eviMi  difiicult,(l)  or  where  it  appears  tliat  the 
defenchmt  was,  at  that  time,  in  a  condition  of  great  ix'cmiiary  distress 
or  trouble,  so  that  he  would  be  likely  to  make  an  undue  sacrifice. (2) 
Where  such  defendant  was  illiterate,  or  ignorant  of  the  facts  involved 
in  the  contract,  or  being  so  acted  without'advice,  or  was  subjected  to 
undue  solicitation  and  pressure  by  the  other  party,  and  yielded 
thereto  without  full  knowledge  and  without  consultation ;  or  wliere 
there  was  circumstances  of  haste,  surprise  and  an  undue  advantage 
obtained,  or  any  other  fact  showing  the  want  of  an  intelligent,  free, 
and  full  consent. (3)  Courts  of  equity  have  not,  however,  in  England, 
much  less  in  this  country,  adopted  a  rule  that  a  contract  cannot  be 
made  without  the  aid  of  professional  advice  ;  (4)  nor  that  a  man,  when 
in  an  insolvent  condition,  or  when  confined  in  prison,  is  necessarily 
unable  to  enter  into  a  valid  agreement  for  the  sale  of  his  property. 
Contracts  made  without  professional  advice,  or  by  insolvents  or  pris- 
oners, are  most  carefully  scrutinized ;  but  if  they  pass  the  j  udicial 
ordeal  without  disclosing  any  unfairness  or  other  equitable  defect, 
their  specific  execution  is  decreed. (5) 
"What  contracts  are  unfair  in  their  terms. 

Hec.  180.  III.  What  provisions  of  a  contract  are  so  unfair,  one- 
sided, unequal,  harsh,  inequitable  that  a  specific  performance  of 
of  them  will  be  refused,  must,  of  course,  depend  upon  the  cir- 
cumstances of  each  individual  case,  so  that  it  is  impracticable 
to  lay  down  any  general  rules  which  shall  serve  either  as  a  test 
for  decision,  or  a  guide  for  the  classification  of  cases.  There 
are,  however,    certain   species   of  agreements   which   are,   in    tlieir 

(1)  Blackwlder  •».  Loveless,  21  Ala.  371.  [See,  also.  Bird  v.  Logan,  S.')  Kan. 
228  ;  Burkhalter  v.  Jones,  32  Kan.  5.] 

(2)  Johnson  v.  Nott,  1  Vern.  271  ;  Keineys  v.  Hansard,  Coop.  125.  [See,  also, 
Swint  v.  Carr,  76  Ga.  322.] 

(3)  Fish  V.  Leser,  69  111.  304 ;  Gasque  v.  Small,  2  Strohb.  Eq.  72  >  Stanley  v. 
Robinson,  1  R.  &  My.  527  ;  Helsham  V.  Lang-ley,  1  Y.  &  C.  C.  C.  175  ;  (Tas(iue  v. 
Small,  suirra,  well  illustrates  several  of  these  pai-ticulais.  A  young-  man.  just 
twenty-one,  aarreed  to  purchase  land  for  a  price  more  than  its  worth,  aft<>r  an 
examination  wholly  insufhcient  to  ascertain  its  value.  From  his  lack  of  experience, 
knowledg-e,  sagacity  and  advice,  he  was  very  untit  to  carry  on  a  negotiation  with 
the  vendor,  who  greatly  exaggerated  the  advantages  of  the  piinihitse,  without, 
however,  being  guilty  of  any  actually  false  representations  or  fraudulent  con- 
cealments. Although  there  was  no  incapacity  on  his  part,  and  no  fraud  on  the 
part  of  the  vendor,  a  specific  performance  was  refused.  [See,  also.  Noble  v. 
Moses.  8  Ala.  530;  Raw  v.  Von  Zedlitz,  132  Miuss.  164  ;  Fi-iend  v.  Lamb,  152  Pa. 
St.  520.] 

(4)  In  the  forcible  language  of  some  of  the  cases,  "without  a  solicitor  nt  the 
parties'  elljow."  Lightfoolw.  Ilei-ou,  3  Y.  &  C.  Ex.  .">S(; ;  lIcbci-dasluM-s' Co.  t). 
Isaac,  3  Jur.  (N.  S.j  611. 

(5)  Brinkley  v.  Hann,  Drury.  175.  [The  fact  of  the  execution  of  a  cimtract 
without  legal  advice,  under  a  mistaken  impression  as  to  the  meaning  of  technical 
words  or  phi-ases,  may  have  weight  with  the  coui-t  in  determining  tlu^  ijuestion  of 
its  fairness ;  see  Poi)e  Manuf.  Co.  v.  Gormully,  34  Fed.  Rep.  877;  Brewster  & 
Co.  V.  TutthiU  Spring  Co.,  34  FeiL  Rep.  773.] 

261 


252  SPECIFIC    FEliF0R2IAA'CE    OF   CONTRACTS. 

nature,  essentially,  unfair,  and  unfit  to  be  enforced.  These  will  be 
described,  and  some  examples  will  be  added  of  other  contracts  which 
admit  of  no  general  classification.  1.  Breach:^  of  trust,  etc.  Con-  > 
tracts  whose  provisions,  if  carried  into  operation,  would  constitute  or 
require  a  breach  of  trust  by  the  party  performing,  or  would  compel 
him  to  do  an  illegal  or  an  unlawful  act,  will  never  be  specifically 
enforced  by  a  court  of  equity.  (1)  The  reason  of  such  refusal  is  found 
in  the  plainest  principles  of  equity,  since  the  agreement  itself  is 
essentially  mifair,  and  it  would  be  oppressive  on  the  defendant  to 
force  the  performance  of  an  act  which  would  inevitably  subject  him 
to  some  penal  consequences,  either  to  an  action  for  damages,  or  per- 
haps even  to  a  criminal  prosecution.  Examples  of  this  rule  may  be 
found  in  the  foot  note. (2)  If  the  agreement  does  not  involve  any 
actual  breach  of  trust,  still  a  court  of  equity  is  always  reluctant  to 
enforce  an  agreement  against  trustees  which  may  injudiciously  affect 

(1)  Harnett  v.  Yeilding,  2  Sch.  &  Lef.  .5.53,  per  Lord  Redesdale  :  "The  plaintiflF 
must  also  show  that,  in  seeking  the  performance,  he  does  not  call  upon  the  other 
party  to  do  an  act  which  he  is  not  lawfully  competent  to  do ;  for  if  he  does, 
a  consequence  is  produced  that  quite  passes  by  the  object  of  the  court  in  exer- 
cising the  jurisdiction,  which  is  to  do  more  complete  justice." 

(2)  If  trustees  acting  under  a  power  agree  to  sell,  but  in  so  disadvantageous  a 
manner  for  the  interest  of  their  cestuis  que  trustent  that  it  amounts  to  a  breach 
of  trust,  specific  performance  uf  the  agreement  is  refused.  Mortlock  v.  BuUer 
10  Ves.  292  ;  Bridger  v.  Rice,  1  J.  &  W.  74;  Wood  v.  Richardson,  4  Beav.  174; 
Maw  V.  Topham,  19  Beav.  576  ;  Hill  v.  Buckley,  17  Ves.  394  ;  Neale-y.  Mackenzie, 
1  Ke.  474.  Assignees  for  the  benefit  of  creditors  sold  an  estate  at  auction  in  a 
manner  very  improvident,  showing  a  want  of  ordinary  business  judgment,  and 
prejudicial  to  the  assignor,  for  the  sake  merely  of  obtaining  money  at  once  with 
which  to  pay  creditoi-s,  and  a  specific  execution  of  the  agreement  was  refused. 
Ord  V.  Noel,  5  Mad.  438.  A  trustee  agreed  to  sell  trust  propei-ty,  and  stipulated  that 
the  purchaser  might  retain  out  of  the  price  a  private  debt  due  him  by  the  trustee  ; 
a  specific  performance  at  the  suit  of  the  trustee  was  refused.  Thompson  v. 
Blackstone,  6  Beav.  470.  Trustees  agreed  to  give  a  lease  which  was  beyond  their 
power,  and  the  court  refused  to  enforce.  Harnett  v.  Yielding,  2  Sch.  &  Lef.  549  ; 
Byrne  v.  Acton,  1  Bro.  P.  C.  186 ;  [See,  also,  Bergengen  v.  Aldrich,  189  Mass. 
259.]  Trustees  made  a  covenant  for  the  renewal  of  a  lease,  which  exceeded 
their  authority,  with  the  same  result.  Bellringer  ^1.  Blagrave,  1  De  G.  & 
Sm.  63.  "Where  trustees  having  power  to  sell  made  a  contract  of  sale,  but 
misrepresented  the  value  of  the  property,  although  they  had  the  means  in 
their  power  of  stating  it  correctly,  and  the  contract  stipulated  for  compen- 
sation on  either  side,  in  case  of  any  failure,  etc.,  the  House  of  Lords  reversed 
a  decree  which  had  awarded  compensation  against  them  for  this  their  misrepre- 
sentation, ami  held  that  a  court  of  equity  would  not  enforce  a  provision  which 
would  injure  the  cestuis  que  trustent,  by  reason  of  the  negligence  of  the  trustees 
in  making  the  misdescription.  "White  t).  Cuddon,  8  CI.  &  Fin.  766,  overruling 
Cuddon  V.  Cartwright,  4  Y.  &  C.  Ex.  25.  Specific  performance  of  a  contract  for 
the  sale  of  leaseholds  made  by  one  of  two  executors  was  refused,  on  the  ground 
that  under  the  circumstances  it  would  be  an  injury  to  ths  cestuis  que  tritstent,  and 
expose  the  executor  to  extraordinary^  risk  from  them,  and  that  either  of  these 
reasons  was  sufficient  to  prevent  an  enforcement     Sneesby  v.  Thome,  1  Jur.  N. 

262      ' 


THE   CONTRACT  MUST  HE   FAIR   AND   JUST.  253 

their  interests  or  those  of  their  beneficiaries.  A  contract  of  sah\ 
therefore,  made  by  trustees  in  an  unbiisiness-like  manner,  or  con- 
trary to  the  methods  of  an  ordinarily  i)rndent  business  man,  will  not, 
ordinarily  be  enforced,  unless  it  is  clearly  established  that  the  price 
was  fully  adequate. (1)  The  general  doctrine  in  regard  to  contracts 
requiring  a  breach  of  trust  or  an  unlawful  act,  ai)plies  not  only  tn 
technical  trustees,  but  to  all  persons  occu]iying  a  definite  fiduciary 
relation  or  position  of  confidence  towards  others,  and  therefore  extends 
to  such  agreements  made  by  agents, (2)  directors  of  corporations, (^o) 
assignees  in  bankruptcy, (4)  and  the  like. 

Injuring  third  persons. 

Sec.  181.  2.  A  second  species  of  contracts  which  will  not  be 
enforced  on  account  of  this  inherent  inequity,  are  those  whose  pro- 

S.  536,  per  Page  Wood,  V.  C,  affirmed  on  appeal,  7  DeG.  M.  &  G.  399  ;  Maj^rane  v. 
Archt)old,  1  Dow.  107.  Per  contra,  iti  Barret  v.  Ring,  2  Sni.  &  Gif.  43,  the  trustees 
of  a  road  had  made  a  contract  for  sale  in  forg'etfiilne.'is  of  a  certain  statutory  rig-ht 
of  pre-emption,  which  therefore  made  them  liable  to  an  action  for  damag-es  if  it 
should  be  brought  against  them — they  were  compelled  by  Stuart,  V.  C,  to  com- 
plete it.  Helling  v.  Lumley,  3  DeG.  &  J.  493,  decided  on  the  very  special  circum- 
stances of  the  case,  does  not  conflict  with  the  rule  stated  in  the  text,  which  was 
fully  approved  in  the  opinion.  The  defendant  was  a  lessee  of  a  theatre,  ami  one 
condition  in  his  lease  forbade  him  to  let  more  than  1.50  boxes  for  over  a  year.  At 
the  time  when  all  these  boxes  w^ere  open  to  him  to  let,  he  made  a  contract  with 
plaintiff",  whei-eby  he  covenanted  to  lease  him  a  specified  box  (say  box  A.)  for  a 
term  of  years.  He  afterwards  conti-acted  and  let  out  I.'jO  other  boxes,  the  full 
number  he  was  allowed  by  his  lease.  Refusing-  to  complete  with  plaintiif,  the 
latter  sued  to  compel  a  specific  performance.  Defendant  set  up  in  defensi!  that 
if  he  should  lease  the  box  A.  to  plaintiff,  he  would  violate  his  condition  and  forfeit 
his  lease.  Held,  that,  under  the  special  circumstances,  the  defense  could  not  be 
admitted.  He  had  it  in  his  power  to  comply  with  plaintifTs  agreement  when  it 
was  made.  Nothing  in  the  agreement  exposed  hina  to  any  penalty.  He  might 
have  let  box  A.  and  counted  it  one  of  the  150.  But,  with  full  knowledge  of  all 
this,  he  chose  to  let  out  all  the  150  to  other  parties,  and  thus,  by  his  own  act, 
brought  himself  in  the  predicament.  Specific  performance  was  decreed.  [See, 
also,  Lehigh  Coal  Co.  v.  Central  R.  R.  Co.,  41  N.  J.  Eq.  167 ;  Tnmm  v.  Lavalie, 
92  111.  263  ;  Bagwell  v,  Bag^vell,  72  Ga.  92.  If  the  cestui  que  tmst  can  insist  on 
the  execution  of  the  contract  as  against  his  tru.stee,  the  trustee  can  also,  if  it  would 
be  unjust  not  to  carry  it  into  effect ;  McMurray's  Appeal,  101  Pa.  St.  421.] 

(1)  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.  90  ;  Wormley  x>.  Wormley,  8  ^^^leat. 
421.  [See,  also.  In  re  Marsh  and  Eail  Gi-anv^i^  24  Ch.  D.  11  ;  Ileywood  v.  Mul- 
lalain,  2.")  Ch.  D.  357 ;  In  re  Great  Northern  lly.  Co.  and  Sanderson,  25  Ch.  D. 
788 ;  Dunn  v.  Flood,  25  Ch.  D.  629,  s  c,  28  Ch.  D.  586  ;  Johnston  v.  Wallis,  41 
Hun,  420 ;  Lehigh  Coal  Co.  v.  Central  R.  R.  Co.,  41  N.  J.  E(i.  167.] 

(2)  If  a  contract  was  the  result  of  a  breach  of  trust  by  an  agent  toward  his 
principal,  it  would  not  be  enforced.     Mortlock  v.  BuUer,  10  Yes.  292,  313. 

(3)  As,  foi'  oxainjile,  directors  of  railways  being  trustees  for  the  stockholders,  a 
contract  made  by'thcm  which  would  operate  as  a  breach  of  ti-ust  towai-ds  some 
or  all  of  the  stockholders,  vnW  not  be  enforced  at  the  suit  of  a  plaintiff"  having 
knowledge  of  the  facts.  Shrewsbury  &  Birmingham  Ry.  Co.  v.  London  &  North 
Western  Ry.  Co.,  4  De  G.  M.  &  G.  115  ;  6  H.  L.  C:is.  113.  See,  on  the  general 
doctidne.  Law  v.  Urlwin,  16  Sim.  377  ;  llede  v.  Oakes,  13  W.  R.  303  ;  Ingle  v. 
Richards,  28  Beav.  361,  365. 

(4)  Turner  1'.  Harvey,  Jac  169. 

263 


254  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

visions,  when  carried  into  operation,  would  defeat  or  materially  injure 
the  rights  of  third  persons  who  have  vested  interests  in  the  property 
as  successive  owners,  remaindermen,  reversioners,  and  the  like.(l) 
Practically,  this  species  of  agreements  is  confined  to  England  and 
Ireland  as  an  incident  of  their  system  of  family  settlements,  and  could 
hardly  be  possible  under  our  more  simple  and  natural  rules  of  real 
estate  law  and  practices  of  land  owners. 

Miscellaneous  cases. 

Sec.  182.  3.  The  owner  of  certain  lots  in  Chicago,  a  weak- 
minded  man,  ignorant  of  their  value  and  of  business,  and  unable 
to  speak  or  understand  English  well,  was  induced,  by  the  impor- 
tunities of  a  land  agent,  during  the  excitement  just  following 
the  fire,  to  agree  to  sell  them  for  $21,000.  Their  value  at  the  time 
was  at  least  §30,000,  and  was  rapidly  increasing.  Persons  of  large 
property  had  just  made  arrangements  to  build  on  adjoining  lots,  which 
would  have  greatly  increased  the  value  of  these  lots.  All  these  facts 
were  well  known  to  business  men  generally,  but  not  to  the  vendor,  and 
were  not  told  to  him.  The  person  who  importuned  him  to  sell,  and 
Avho  was  made  his  agent  to  effect  the  sale,  appeared  to  be  acting  also 
for  the  purchasers,  and  this  fact  was  also  concealed.  A  specific  per- 
formance prayed  by  the  vendee  was  refused. (2)  This  case  presents 
every  element  of  unfairness.  The  terms  of  the  contract  were  unequal ; 
the  surrounding  circumstances  were  of  themselves  a  reason  to  defeat 
any  relief,  and  many  of  these  circumstances  throw  great  light  upon 
the  provisions  of  the  agi^eement.  In  a  recent  English  case  the 
defendant,  an  elderly  lady,  being  ignorant  of  their  real  worth,  agreed 
to  sell  two  very  valuable  jars — articles  of  tirtii — to  the  plaintiff,  who 
was  an  expert  and  knew  their  nature  and  value.  Although  there 
was  no  actual  fraud,  yet,  as  the  parties  did  not  contract  upon  an 
equal  footing,  and  the  price  was  insufficient,  a  specific  execution  was 
refused.  (3) 

(1)  Thomas  v.  Deriny,  J  Ke.  729.  The  rights  of  persons  not  parties  to  the  con- 
tract, and  even  when  vesting  after  it  was  made,  are  proper  e(iui table  considera- 
tions to  be  taken  into  account  in  determining  whether  the  contract  should  be 
specifically  enforced.  Curran  v.  Holyoke  Water  Co.,  116  Mass.  90.  Where  an 
owner  has  made  a  voluntary  settlement  of  his  estate,  and  afterwards  enters  into 
a  contract  for  the  sale  of  the  land,  he  will  not  be  pei-mitted  to  enforce  perform- 
ance, and  thus  cut  off  the  rights  of  the  jiersons  claiming  under  it.  Johnson  v. 
Legard,  T.  &  R.  281  ;  Smith  v.  Garland,  2  Mei-iv.  123.  l^TXia  contract  of  a  father 
with  his  paramour,  whereljy  he  attempted  to  deprive  his  lawful  children  of  their 
rights  of  inheritance,  was  not  enforced  ;  Wallace  v.  Kappleye,  103  111.  229.  Nor 
a  settlement  whereby  one  creditor  would  reap  an  ad\-antage  that  was  unjust  to 
othej-s.  Hale  v.  Bryant,  109  111.  34.  The  rights  of  third  parties  will  be  consid- 
ered, though  they  are  not  i^arties  to  the  suit.  Carlisle  v.  Carlisle,  377  Ala.  339. 
Specific  performance  will  be  refused  whei'c  the  public  has  an  interest  in  the  non- 
p(M-formance  of  the  contract.  Mine  Hill  K.  R.  v.  Lippincott,  86  Pa.  St.  468.  See 
ante,  n.  to  §  23.] 

(2)  Fish  V.  Leser,  G9  111.  394,  395.  In  the  absence,  however,  of  fraud,  or  other 
features  of  actual  wrong  dealing,  the  mere  fact  that  the  plaintiff  has  made  an 
advantageous  bargain  in  the  transaction,  will  not  prevent  his  enforcement  of  the 
contract.     Union  Coal  Mining  Co.  v.  McAdaui,  38  Iowa,  663. 

(3)  Falcke  v.  Gray,  4  Drew.  651. 

204 


TIIK    COSTRA('T  MfST  JIK    FAU!    AND   JUST.  255 

Extrinsic  circumstances  rendering  the  contract  unfair. 

yEC.  183.  Second.  Althougli  tlie  very  tennsof  uii  a;^^r»M'intMit,  taken 
by  theiuselvos,  may  be  unobjectionable,  the  circunLstances  ininietliately 
preceding  or  accompanying,  or  succeeding  its  conclusion,  the  relations 
of  the  parties,  the  acts  or  omissions  of  the  plaintiff  during  the  negotia- 
tion, or  even  after  the  time  of  its  being  entered  into,  may  be  such  as  to 
stamp  a  character  of  inequity  upon  the  agreement  and  to  furnish  an 
ample  reason  for  withholding  the  equitable  remedy.  It  may  be  laid 
down  as  a  general  proposition,  that  if  there  is  any  circumstance  or  fact 
connected  wdth  the  preliminary  negotiation  or  subsequent  operation, 
with  the  relatioTis  of  the  parties,  or  conduct  of  the  plaintiff,  which  ren- 
ders its  enforcement  unfair,  harsh,  or  inequitable  upon  the  defendant, 
such  specific  performance  will  be  refused  ;  and  to  produce  such  a  result, 
there  need  have  been  no  intentional  dishonesty  or  unfairness,  although, 
in  the  great  majority  of  instances,  the  design  to  overreach  or  obtain 
an  undue  advantage  w'ill  of  course  be  present. (1) 

(1)  Mortlock  V.  Buller,  10  Ves.  292,  305  ;  Twining-  v.  Mon-ice.  2  Bro.  C.  C.  82(5. 
A  suit  for  a  specific  performance  by  a  vendee  ag-ainst  the  vendor.  Tlie  sale  was 
at  auction,  and  a  solicitor,  who  was  the  well-known  ag-ent  of  the  owner,  made 
some  biddings  for  the  vendee,  the  plaintiff,  at  his  request.  As  the  attorney  was 
known  to  be,  in  general,  acting  for  the  vendor,  these  biddings  were  supposed,  by 
the  by-standers,  to  be  in  fact  those  of  a  puffer  employed  by  the  vendor,  and  they 
restrained  other  persons  from  bidding.  The  attorney  really  acted  without  any 
design  and  thoughtlessly,  so  there  was  no  intentional  fraud ;  but  as  he  acted  by 
the  direction  of  the  plaintiff,  and  the  natural  effect  of  puffers'  biddings  vms  pro- 
duced, a  specific  performance  was  refused  by  Loi-d  Kenyox,  M.  R.  In  Marble 
Co.  V.  Ripley,  10  Wall.  339,  357,  the  plaintiff,  asking  a  specific  performance,  had 
taken  vei-y  unfair  advantage  of  a  provision  in  the  contract,  which  gave  him  a 
I'ight  of  entry  upon  the  hapjjening  of  a  certain  contingency.  By  underhanded 
means  and  dece})tion,  he  had  procured  a  technical  bi-each  of  the  condition,  impos- 
ing on  defendant,  and  in  fact  inducing  him  not  to  take  stejis  to  prevent  the  breach, 
and  then  had  secretly  entered,  etc.  The  court  held  that  there  was  no  real  brea(;h  ; 
that  what  took  place  was  by  the  plaintifTs  procurement,  and  then  added  :  "The 
conduct  of  the  complainant  has  not  been  such  as  to  justify  the  court  in  decreeing 
a  specific  performance  at  his  suit.  "Without  relying  upon  his  alleged  unfounded 
claims  set  up  from  time  to  time,  his  unlawful  and  unwarranted  entry  and  ouster 
of  the  marble  company,  was  such  an  invasion  of  the  contract  as  leaves  him  no 
standing  as  a  i)lainuff  asking  fur  its  specific  performance  in  a  court  of  equity."* 
In  Blackwililer  V.  Loveless,  21  Ala.  371,  defendant  being  in  possession  of  land 
under  claim  oi  title,  plaintiff  obtained  a  recovery  against  him  in  pi-oceedings  for 
a  forcible  entry  and  detainer,  which  do  not,  however,  decide  any  question  of  title. 
"While  he  held  a  warrant  for  removal,  defendant,  who  had  gi-owing  crops  on  the 
land,  made  a  written  agreement  whereby  ior  $30  he  promised  to  convey  tlie  title, 
by  a  deed,  and  give  up  possession  at  the  end  of  a  year.  The  land  was  woi-th 
several  hundred  dollars.  The  court  refused  a  specific  performance  because, 
although  there  was  no  fraud,  mistake  oi-  technical  dni-ess,  the  parties  did  not 
deal    on    w^ual   terms  ;  the  plaintiff  occupied  a   position   of    unfair    advantage 

265 


256  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

Concealment,  unequal  knowledge,  intoxication. 

Sec.  184.  The  following  are  some  of  the  particular  facts  and  circum- 
stances most  frequently  occurring,  which,  under  the  operations  of  this 
general  doctrine,  always  impart  an  inequitable  taint  to  agreements, 
and  prevent  a  specific  enforcement.  The  concealment,  suppression, 
or  neglect  to  disclose  any  fact  during  the  negotiation,  or  at  the  time 
of  the  conclusion,  which,  if  known,  could  have  reasonably  affected  the 
result,  although  not  amounting  to  such  fraudulent  concealment  as  would 
furnish  the  ground  for  a  rescision,  will  induce  the  court  to  withhold 
its  equitable  remedy.(l)     Quite  analogous  to  this  case,  and  indeed  a 

whereby  he  secured  the  contract  for  an  inadequate  price,  and  the  defendant  was 
not  in  a  situation  to  insist  upon  fair  and  equal  terms.  Stone  v.  Pratt,  2.5  III.  25. 
34,  is  an  instructive  case.  The  owner  of  land  agreed  to  sell  it  for  $4,000,  and  a 
part  of  the  purchaser's  interest  was  assigned  to  the  plaintiff.  The  oi-iginal  con- 
tract of  sale  contained  some  jirovision  by  which  the  vendor's  interest  was  made 
liable  to  a  forfeiture.  By  some  neg-lect  on  his  pai-t,  the  vendor's  interest  was  for- 
feited, and  sold  by  virtue  of  certain  judicial  proceedings  to  the  plaintiff  for  a  very 
small  sum,  none  of  which  was  received  by  the  vendor.  The  plaintiff  afterwards, 
as  assignee  of  the  vendee,  sues  for  a  specific  performance,  which  was  refused  ou 
the  gi'ound  that  defendant  had  i-eceived  no  compensation  whatever  for  his  land, 
and  the  decree  would  be  very  unjust  and  harsh.  From  the  peculiar  terms  of  the 
contract  and  the  subsequent  proceedings,  the  plaintiff  had  obtained  an  unconscion- 
able advantage,  and  was  seeking  to  perfect  title  to  a  valuable  tract  of  land  for 
which  he  had  paid  but  little,  and  for  which  the  owner  had  been  paid  absolutely 
nothing.  A  court  of  equity  would  not  aid  him  in  his  design  of  making  title,  but 
would  leave  him  to  his  strict  legal  rights  and  remedies.  See  the  very  able  opin- 
ion, ante,  §  35,  note.  For  cases  m  which  a  sijecific  pei'formance  was  refused 
because  the  contract  was  too  hastily  and  inconsiderately  made,  see  Godwin  v. 
Collins,  4  Houst.  28,  and  Morganthau  v.  White,  1  Sweeney,  395. 

(1)  Fish  V.  Leser,  69  111.  S94,  which  includes  several  different  items  of  conceal- 
ment, viz.,  facts  greatly  enhancing  the  value  of  the  propei'ty,  and  the  fact  that 
the  agent  of  the  vendor  was  secretly  acting  for  the  vendee.  (See  facts  and  opinion 
ante,  §§  35,  182.)  In  the  following  instances  the  concealment  was  held  a  ground 
for  refusing  the  remedy.  In  making  a  contract  for  the  sale  of  an  estate,  the  fact 
that  a  wall,  in  order  to  protect  it  from  the  river  Thames,  required  repairing. 
Shirley  v.  Stratton,  1  Bro.  C.  C.  440.  An  ignorant  owner  agreed  to  sell  his  land 
for  a  half-penny  per  square  yard,  which  would  amount  to  about  500Z,  while  the 
property  was  worth  £2,000,  and  this  fact,  known  by  the  vendee,  was  carefully 
suppressed  ;  this  was  really  a  case  of  fraudulent  concealment.  Dean  v.  Rastron, 
1  Anst.  64.  Where  a  lessee  holding  a  lease  per  autre  vie,  and  knowing  that  the 
person  on  whose  life  it  depended  was  at  the  point  of  death,  and  suppressing  the 
fact  which  was  unknown  to  the  lessor,  procured  a  conti-act  for  the  sui-i-ender  of 
the  lease  and  the  renewal  of  it  for  another  term.  EUard  v.  Lord  Llandaflf,  1  Ball 
&  Be.  241  ;  Edwards  v.  McLeay,  Coop  308  ;  2  Sw.  287.  Where  the  same  attorney 
acted  for  both  vendor  and  vendee,  but  did  not  disclose  to  both  parties  all  the  facts 
in  reference  to  his  i:)osition,  and  thus  make  them  fully  acquainted  with  their  rela- 
tions to  each  other  through  him,  a  suit  for  specific  performance  by  the  vendee  was- 
dismissed.  Hesse  v.  Briant,  6  De  G.  M.  &  G.  623.  [An  agreement  to  compromise 
a  debt  was  not  enforced,  where  the  creditor  was  ignoi-ant  that  he  had  a  judgment 
and  execution  and  levy  on  his  behalf  on  the  property  of  the  debtor  sufficient  to 
\)a.y  the  debt,  and  these  facts  were  known  to  the  debtor.  Cowan  v.  Sapp,  SI  Ala. 
525.  So,  where  a  real  estate  bi-oker  concealed  material  facts  from  hi.-;  prin- 
cipal, to  the  advantage  of  purchasers.  Young  v.  Hughes,  32  N.  J.  Eq.  372.] 
266 


THE   CONTRACT  MUST  BE  FAIR   AND  JUST.  257 

particular  instance  of  it,  is  that  in  which  one  party  to  the  contract 
has,  at  the  time  of  its  conchision,  full  kiiowledi^e  uf  any  material  facts 
which  are  involved  in  the  a^eement,  while  the  other  party  ia  both 
ignorant  of  them  and  has  no  means  of  aciiuiring  the  information. 
Under  such  circumstances,  the  parties  evidently  do  not  stand  on  an 
equality;  one  has  an  undue  advantage  vver  the  other  ;  t)ne  is  dealing- 
concerning  a  certainty,  the  other  concerning  an  uncertainty  ;  and  if 
the  result  is  prejudicial  to  the  interests  of  the  ignorant  party,  a  per- 
formance of  the  contract  could  not  be  enforced  against  him.(l) 
Another  extrinsic  circumstance  which  renders  an  agreement  unfair 
and  unfit  to  be  specifically  enforced,  is  the  intoxication  at  the  time 
when  it  was  made  of  the  party  against  whom  the  remedy  is  asked, 
even  though  such  intoxication  was  not  accompanied  by  acts  which 
would  be  deemed  fraudulent,  and  which  would  be  a  sufficient  ground 
for  decreeing  a  recision.(2)  The  intoxication  must  be  so  complete  as  to 
suspend  the  operation  of  the  party's  mental  faculties,  and  render  him 
incapable  of  understanding  the  nature  of  the  transaction.  A  condi- 
tion of  mere  exhiliration  or  excitement  produced  by  drink,  is  not 
sufficient  if  the  party  still  comprehends  what  he  is  doing. (3) 

(1)  Falck  V.  (ri-ay.  4  Di-evv,  C51  ;  Fish  v.  liHser,  G9  111.  304,  [and  "Wollums  V. 
Horsley  (Ky.),  20  S.  W.  Rep.  781,  J  cases  of  knowledg'e  and  ignorance  respecting' 
the  value  of  the  property  sold.     Smith  v.  Harrison,  20  L.  J.  Ch.  412. 

(2)  Cooke  V.  Clayworth,  18  Ves.  12 ;  Crag-g  v.  Holme,  cited  in  18  Ves.  14  ; 
Nagle  V.  Baylor,  3  Dr.  &  W.  60.  A  contract  obtained  from  an  intoxicated  person 
by  fraud  will  be  rescinded.  Butler  v.  Miilvhill,  1  Bli.  137.  If  a  party  was 
Simply  intoxicated,  and  there  were  no  other  circumstances  of  fraud,  imposition, 
undue  advantag-e,  and  the  like,  courts  of  e<iuity  incline  to  leave  the  parties  with- 
out any  help  to  their  legal  remedies  ;  while  it  does  not  enforce  such  an  agreement 
against  the  intoxicated  person,  it  does  not  aid  him  by  rescinding  his  contract  on 
the  ground  of  mere  intoxication.  Story's  Ecj.  Jur.  §J^  231,  232  ;  Campbell  v. 
Ketcham,  1  Bibb,  40G  ;  Taylor  v.  Patrick,  1  Bibb,  168  ;  White  v.  Cox,  3  Hayw.  82  ; 
Wigglesworth  v.  Steers,  1  Hen.  &.  Muuf.  70. 

(3)  Lightfoot  V.  Heron,  3  Y.  &  C.  Ex.  588  ;  see  Shaw  r.  Thackray,  1  Sm.  & 
G.  537.  Although  intoxication  might  prevent  the  enforcement  of  the  cotitract 
between  the  immediate  parties,  a  specific  performance  might  be  decreed  in  favor 
of  the  first  vendee  against  a  second  purchaser  who  bought  with  notice  of  the 
prior  agreement.  Shaw  v.  Thackray,  1  Sm.  &  Gif.  537.  If  the  plaintiff,  by  his 
contrivance,  led  on  the  defendant  to  drink  so  as  to  affect  his  judgment,  and  then 
took  advantage  of  this  condition  to  obtain  a  contract  favorable  to  himscjlf,  a  .sj)ecitic 
performance  would  certainly  be  j-efused,  and  the  agreement  might  even  be 
rescinded  at  the  suit  of  the  injured  pai-ty.  Cook  v.  Clayworth,  IS  Ves.  12  ;  Say 
V.  Barwick,  1  \.  &  B.  19.");  Nagle  v.  Baylor,  3  D.  &  War.  60;  Lightfoot  /'.  Heron, 
3  Y.  &  C.  Exch.  586  ;  Lavette  v.  Sage,  2!)  Conn.  577  ;  PrcMitice  v.  Achorn,  2  Paige, 
30 ;  Crane  v.  Conklin,  Saxton,  346  ;  Calloway  x\  Withcrspoon,  5  Ircd.  Eij.  128  ; 
Morrison  v.  McLeod,  2  Dev.  &  Bat.  Eq.  221 ;  Whitesides  v.  Greenlee,  2  Dev.  Eip 
152 ;  Reynolds  «.  Waller,  1  Wash.  164  ;  Hotchkiss  v.  Forston,  7  Yerg.  67  ;  [Caven- 
\er  V.  Wadilingham,  2  Mo.  App  5."d  ;  Leonanl  ?•.  Crane,  147  111.  52.]  A  con- 
tract   m;i;le  diu-'.n  7  a  compk'^e  intoxication  w!ii:h  temporarily  suspends  all  the 

267 


258  SPECIFIC  PERFORMAiyCE   OF  CONTRACTS. 

SECTION  IX. 

The  remedy  of  specific  performance  must  not  be  harsh  or  oppressive. 

Section  185.  Not  only  must  the  agreement  be  fair  and  reasonable 
in  its  terms  and  its  surrounding  circumstances,  it  is  also  a  well-settled 
doctrine  that  its  specific  execution  must  not  be  oppressive — that  is,  the 
performance  must  not  be  a  great  hardship  to  the  parties.  This  rule 
-includes  the  one  treated  of  in  the  last  section — since  every  unfair 
contract  is  essentially  unconscionable  and  hard — but  it  is  more  exten- 
sive, since  the  oppressive  nature  of  the  performance  may  result  from 
the  situation  or  relations  of  the  parties  exterior  to  and  unconnected 
Avith  the  terms  of  the  contract  itself  or  the  circumstances  of  its  con- 
clusion,(l)  The  oppression  and  hardship,  therefore,  which  fall  within 
the  scope  of  the  doctrine  may  result  from  the  unequal,  unconscionable 
provisions  of  the  contract  itself,  or  from  external  facts,  events  or  cir- 

person's  faculties,  is  voidable,  and  as  a  matter  of  course  will  not  be  enforced  in 
equity.  Prentice  v.  Achorn,  2  Paig-e,  30  ;  Clifton  v.  Davis,  1  Pars.  Eq.  Cas.  31  i 
Donelson  v.  Posey,  13  Ala.  752.  There  are,  however,  dicta  to  be  found  in  some 
cases  to  the  effect  that  tnei'e  intoxication,  without  other  incidents  of  wrong  doing" 
on  the  plaintiff"'s  part,  is  not  a  sufficient  ground  for  denying  a  specific  perform- 
ance. See  Rodman  v.  Ziiley,  Saxton,  320  ;  Pittenger  v.  Pittenger,  2  Green,  Ch. 
]r,G.  In  the  latter  case,  especially,  there  are  general  dicta,  which  conflict  with 
the  rules  stated  in  the  text,  and  which  should  be  restrictel  to  the  very  facts  and 
circumstances  then  before  the  court.  A  court  of  equity  is  always  cautious  in 
admitting  the  defense  of  intoxication,  and  especially  in  rescinding  contracts  on 
its  account.  A  man  may  be  quite  under  the  effect  of  liquor,  and  still  be  shrewd, 
hard  in  driving  a  bargain,  and  evei'y  way  competent  to  manage  his  business  ; 
and  it  is  always  difficult  to  ascertain  how  much  a  party  was  really  afl'ected  by  his 
intoxication.  See  Cooke  u  Clayworth,  18  Ves.  12 ;  Shaw  v.  Thackray,  1  Sm.  & 
Gif.  537.  For  cases  in  which  the  effect  of  weakness  of  mind  was  considered,  see 
Graham  n.  Pancoast,  6  Casey,  89  ;  Nace  v.  Boyer,  6  Casey,  9.) ;  Green  v.  Green,  9 
Graft.  330  ;  Thomas  v.  Sheppai-d,  2  McCord  Eq.  36. 

(1)  Gould  ■?5.  Kemp,  2  My.  &  K.  308,  per  Lord  Brougham  ;  Kimberly  v.  Jen- 
nings, 6  Sim.  340  ;  Willard  v.  Tayloe,  8  Wall.  557  ;  Margraf  v.  Muir,  57  N.  Y.  155  ; 
Weise's  Appeal,  72  Pa.  St.  351 ;  Marble  Co.  v.  Ripley,  10  Wall.  339 ;  Stone  v. 
P)-att,  25  III.  25  ;  Cathcart  v.  Robinson,  5  Peters,  263  ;  Tobey  v.  County  of  Bi-istol, 
3  Story,  800 ;  Seymour  v.  Delancey,  3  Cow.  445  ;  Ohio  v.  Baum,  6  Ham.  383  ; 
■Cannaday  v.  Shepard,  2  Jones  Eq.  224  ;  Barnett  v.  Spi-att,  4  Ired.  Eq.  171  ;  in 
•Clarke  v.  Rochester,  etc.,  R.  R..  18  Barb.  350,  the  railroad  had  l)uilt  an  embank- 
ment on  land  conveyed  to  them  by  the  plaintiff,  and  by  means  thereof  had  cut  off 
access  to  another  portion  of  his  land,  and  under  such  circumstances  the  statute 
required  them  to  construct  farm  crossings  ;  but  as  the  value  of  the  plaintifTs 
land  thus  cut  off  was  slight,  and  as  the  cost  of  constructing  the  crossing  would  be 
out  of  all  proportion  to  the  value  of  such  land,  the  court  refused  to  compel » 
268 


THE   REMHDV  MlST  yoT  BE    OlTliESSIVK.  iT)'.) 

cumstances  which  control  or  affect  tlio  situat'n)u  and  ri'lations  of  ilie 
defendant  with  retipcu't  to  the  performance.  In  either  case  the  result- 
ing iiardsliip  may  constitute  a  siitUcieiit  ground  for  a  court  of  e(|uity 
to  witlihold  its  peculiar  nMii^f,  and  to  l('a\<>  the  plaiutitV  to  liis  Icgjil 
remedy. (1)  Tlie  general  doctrine  also  extends  to  tlie  agrcemt-nts  of 
corporations,  as  well  as  to  those  of  private  persons. (2) 

specific  performance  of  the  statutory  duty,  and  left  the  phiintilf  to  liis  remedy  by 
an  action  at  law  for  damag'es.  In  Wedjjwood  v.  Adams,  0  Beav.  (iOO ;  8  Beav. 
103,  the  doctrine  was  carried  to  its  utmost  limit.  Truste<\s  joined  in  a  contract  (»f 
sale,  and  personally  bound  themselves  to  free  tiie  estate  from  incumbrances. 
These  were  large,  and  it  did  not  appear  whether  the  i)urcha.se-money  would  be 
enough  to  pay  them  all  ofi',  nor  what  would  be  the  amount  of  the  deficiency.  Lord 
Langdale  refused  a  specific  performance  against  the  trustees  in  respect  to  this 
stipulation,  leaving  the  vendee  to  his  legal  action.  He  said:  "I  conceive  the 
doctrine  of  the  court  to  be  this  ;  that  the  court  exercises  a  discretion  in  cases  of 
specific  performance,  and  directs  a  siiecific  performance  unless  it  should  be  what 
is  called  highly  unreasonable  so  to  do.  What  is  more  or  less  reasonable  is  not  a 
thing  that  you  can  define  ;  it  must  depend  upon  the  circumstances  of  each  parti- 
cular case.  The  court  must,  therefore,  always  have  regard  to  the  circumstances 
of  each  case,  and  see  whether  it  is  reasonable  that  it  should,  by  its  extra- 
ordinary jurisdiction,  interfere  to  order  a  specific  performance,  knowing  at 
the  time  that  if  it  abstains  fi-om  so  doing,  a  measure  of  damage  may  be  fcmnd 
and  awarded  in  another  court.  Though  you  cannot  define  what  may  be 
considered  unreasonable,  by  way  of  a  genei-al  rule,  you  may  very  well  in  a  parti- 
cular case  come  to  a  balance  of  inconvenience,  and  determine  the  propriety  of 
leaving  the  plaintifi"  to  his  legal  remedy  by  recovery  of  damages."  *  *  * 
"  After  consideration,  I  thirdv.  I  cannot  oi-der  a  sepcitic  performance  of  the  agree- 
ment ;  and  with  regard  to  its  being  a  mei'e  money  objection,  I  could  not,  when 
this  case  was  arg-ued,  call  distinctly  to  mind  a  case  of  that  sort  of  which  I  had 
some  recollection,  and  which  came  before  Lord  Hakdwicke,  I  think  that  come.s 
very  nearly  to  a  case  of  mei-ely  pecuniary  olijection."  See.  also.  Pope  v.  Harris, 
cited  Lofft,  791 ;  Costigan  v.  Hastier,  2  Sch.  &  Let".  160  ;  Howell  v.  George,  1 
Madd.  1  ;  White's  Case,  3  Sw.  108,  n.;  Coote  v.  Coote.  1  Sauss.  &  Scui.  393 ;  Kim- 
berly  u  Jennings,  6  Sim.  340;  Talbot  ■!>.  Ford,  bS  Sim.  173;  Ry;ui  71.  Danial,  1  V.. 
&  C.  C.  C.  60;  Webb  v.  Direct  London,  etc.,  Ry.  Co.,  1  DeG.  M.  &  G.  ')2l ;  9  Hare, 
129  ;  Watson  v.  Marston,  4  DeG.  M.  &  (t.  230,  239  ;  Browne -?).  Coiipinger,  4  Irish  Cii. 
Rep.  72  ;  Williamson  v.  Wootton,  3  Drew.  210  ;  Tildesley  v.  Clarkson,  30  Beav. 
,419 ;  Oxford  v.  Provand,  L.  R.  2  P.  C.  135 ;  [Kramer  v.  Dinsmore,  152  Pa.  St. 
264  ;  Miles  v.  Dover  Fui-nace  Iron  Co.,  125  N.  Y.  294  ;  Marr  v.  Shaw,  51  Fed.  Rep. 
860  ;  Lamson  v.  Martin,  159  Mass.  557.]  But  the  coui-t  will  not,  oq  this  ground, 
refuse  to  compel  a  person  who  was  mei-ely  an  agent  to  specifically  perform  his 
contract  of  purchase.  Saxon  v.  Blake,  29  Beav.  438,  and  see  Chad  wick  v.  Maden, 
9  Hare,  188. 

(l)See  cases  in  last  note  :  Clarke  v.  Rochester,  etc.,  R.  11.,  fiiipra,  is  an  excel- 
lent illustration  of  hardship  arising  outside  of  tlie  contr;ii't  and  the  obligation 
imposed  by  its  terms. 

(2)  Shrewsbiuy  &  Birmingham  Ry.  Co.  v.  London  &  North  Western  Ry.  Co.,  4 
DeG.  M.  &  G.  ILo ;  (i  H.  L.  Cas.  113  ;  where  a  contract  b(«tween  two  railway  com- 
panies for  sharing  their  business,  if  cai-ried  out.  would  necessarily  clivert  a  con- 
siderable part  of  the  business  and  profits  from  tlieir  legitimate  (-h.-uuKd  on  the 
road  of  one  company,  and  give  them  to  the  other  without  any  corresponding  busi- 

260 


260  SPECIFIC  PERFORMANCE   OF  CONTRACTS, 

The  time  to  vrhich  the  hardship  must  be  referred. 

Hec.  186.  The  rule  iu  regard  to  the  time  in  the  progress  of  the 
contract  at  which  the  element  of  hardship  nnist  first  exist,  in  order 
that  it  may  be  a  suificient  ground  for  denying  the  equitable  remedy, 
is  tlie  same  as  that  in  regard  to  the  analogous  element  of  fairness, 
and  it  is  clear  that  both  rest  upon  one  principle.  The  statement 
of  the  rule  and  of  its  various  applications  and  limitations,  given  in 
the  preceding  section  need  not,  therefore,  be  repeated.  (1)  It  is  true 
the  doctrine  has  been  laid  down,  as  though  universal,  that  if  a  con- 
tract is  fair  and  just  when  made,  no  hardship  in  the  performance 
arising  from  subsequent  events  or  change  of  circumstances  will 
influence  the  judicial  discretion  of  the  court  in  awarding  or  with- 
holding the  relief  of  a  specific  execution. (2)  If  this  proposition  were 
true,  it  would  necessarily  follow  that  no  oppression  or  hardship  in 
the  performance  would  avail  as  a  defense,  unless  it  inhered  in  and 
resulted  from  the  very  terms  of  the  contract  itself,  or  the  circum- 
stances attending  its  creation ;  but  the  contrary  is  well  settled,  and 
is  illustrated  by  numerous  cases  in  which  the  objection  to  enforc- 
ing performance  arose  from  the  situation  or  relations  of  the  defendant 
w^holly  independent  of  the  contract  itself.  (3)  In  certain  kinds  of 
agreements,  as  described  in  the  last  Section,  a  specific  performance 
will  not  be  denied^ecause  a  change  of  circumstances,  or  unforeseen 
development  of  events,  has  rendered  it  onerous  ;  and  a  few  additional 
examples  are  given  in  the  foot-note. (4)     In  respect  to  other  contracts, 

ness  and  profits  allotted  by  the  second  company  for  the  benefit  of  the  former,  a 
specific  pei-formance  was  refused,  independently  of  the  objection  that  such  a  con- 
ti*act  was  ultra  vires. 

(1)  See  ante,  §§  177,  178. 

(2)  Lawder  v.  Blachford,  Beat.  522  ;  Webb  v.  Direct  London  &  Portsmouth  R'y 
Co.,  9  Ha.  129. 

(3)  See  ante,  §  178. 

(4)  Where  a  lessee  of  renewable  leaseholds  covenants  with  his  sub-lessee  to 
renew  without  fine  on  every  renewal  to  himself,  and  subsequently  a  renewal  is 
made  to  him,  but  on  far  less  favorable  terms  than  had  been  the  custom  before 
and  at  the  time  he  made  his  covenant — he  having-,  in  fact,  made  his  covenant  in 
the  expectation  that  the  foi-mer  pi-actice  would  be  continued  in  the  renewals  to 
himself — he  was  held  bound  to  renew  to  his  sub-lessee  without  exacting  any  pay- 
ment by  way  of  contribution  towards  the  increased  fine  which  he  himself  had 
been  obliged  to  pay.  Evans  v.  Walshe,  2  Sch.  &  Lef.  510  ;  Revell  v.  Hussey,  2 
Ball  &  B.  280 ;  Lawder  v.  Blachford,  Beat.  522  ;  Thomas  v.  Burne,  1  Dr.  &  Wal. 
657  ;  Haywood  v.  Cope,  4  Jur.  (N.  S.)  227.  These  cases  are  of  very  little  practical 
importance  in  this  country,  and  are  cited  solely  because  they  belong  to  and  serve 
to  illustrate  the  species  of  contracts  mentioned  in  the  preceding  Section,  which,  by 
their  terms,  contemplate  that  their  operation  is  to  last  for  an  indefinite  period. 
The  lessee  covenants  to  i-enew  to  his  sub-lessee  as  often  as  the  lease  is  renewed  to 
.himself,  and  this  must  continue  indefinitely.     Again,  when  railway  companies  in 

270 


THE  REMEDY  MUST  NOT  BK    OPPRESSIVE.  261 

not  falling-  nndor  any  of  these  species,  it  is  clear  that  subsequent 
events  may  occur,  or  circumstances  may  become  changed,  whidi  mIkiH 
render  their  performance  so  onerous  and  oppressive  that  courts  of 
equity  will  not  decree  their  execution.  tSuch  cases  must,  of  course,  be 
determined  each  upon  its  own  facts,  and  it  is  impossible  to  lay  down 

England  contract  for  the  jmrchase  of  land,  ami  by  thoir  own  delay  and  laches 
their  powers  nnder  the  statute  run  out  before  the  pui-chase  is  (•on»plete<l,  they 
cannot  rely  upon  this  fact  as  any  defense  against  an  enforcement  at  the  suit  of  the 
vendor,  llawkes  v.  Eastern  Counties  R'y  Co.,  1  DeG.  M.  &  (i.  737,  7.'3j  ;  5  II.  L. 
Cas.  331.  In  these  cases  the  conduct  of  the  defendant  itself  produced  all  the 
difficulty,  and  it  is  a  very  familiar  principle  that  a  party  cannot,  by  his  own  delay, 
laches,  or  negligence,  create  a  condition  of  affairs  which  shall  defeat  a  liability 
resting  upon  him.  The  practice  in  relation  to  the  enforcement  of  awards  has  been 
cited  as  an  evidence  of  a  general  rule  that  harilship,  arising  fi-om  future  events, 
is  never  a  defense.  It  is  said,  that  when  the  agi-eement  to  submit  is  unfair  or 
hard,  it  will  not  be  enforced  ;  but  that  unfairness  or  hardship  in  the  award  itself, 
will  not  prevent  its  enforcement.  Nickles  v.  Hancock,  7  DeG.  M.  &  G.  300  ; 
Wood  V.  Griffith,  1  Sw.  43.  And  the  reason  is  given,  that  the  submission,  and 
not  the  award,  is  the  agi-eement,  and  the  unreasonableness  in  the  awa)-d  is  matter 
subsequent,  the  risks  of  which  the  parties  have  taken  upon  themselves.  See  Fry 
on  Specific  Performance,  §  254.  This  argument  is  without  any  real  foundation. 
The  courts,  for  a  variety  of  reasons,  never  enforce  the  specific  perfoi-mance  of 
agreements  to  submit,  one  reason  being  that  they  are  revocable.  Awards  are 
enforced,  not  as  awards,  but  as  the  consummation  of  the  submission  ;  that  is,  the 
submission  and  the  award  are  taken  together  as  constituting  one  agi-eement,  and 
are  enforced  subject  to  the  i-ules  which  govern  the  specific  performance  of  all  con- 
tracts. Undoubtedly  the  fact  that  an  awai-d  is  one-sided,  harsh,  Tinfair,  will  not, 
of  itself  in  general,  prevent  its  enforcement;  but  this  :s  so  not  from  any  consider- 
ation of  its  being  a  subsequent  event,  but  because  it  is  a  quasi  judicial  act ;  the 
parties  have  chosen  their  judge  and  must  abide  by  his  decision.  These  decisions, 
therefore,  have  no  real  bearing,  one  way  or  the  other,  upon  the  rule  under  dis- 
cussion. The  general  docti-ine  has  been  laid  down  in  some  decisions,  that  a 
change  of  circumstances,  with  which  plaintiff  is  not  directly  nor  indirectly  con- 
nected, will  not  prevent  the  enforcement  of  a  contract  originally  fair,  however 
hard  on  defendant  such  enforcement  may  be.  Hale  v.  Wilkinson,  21  Graft.  75 ; 
Morgan  v.  Scott,  2  Casey,  51.  But  such  change  may  operate  against  a  ])laintiff 
who  has  beengmlty  of  laches,  oi"  been  in  default.  Garnett  v  Macon,  6  Call.  309  ; 
Booten  v.  Schatter,  21  Gratt.  474  ;  Whitaker  v.  Bond,  (53  N.  C.  290.  Plaintiff 
must  be  diligent,  prompt,  ready  ;  if  he  delays  so  that  defentlant  thereby  becomes 
so  situated  that  a  specific  performance  is  oppressive,  the  court  may  refuse  to 
interfere.  Bank  of  Alexandria  ?'.  Lynn,  1  Peters,  87() ;  Porter  v.  D(^uirhertv,  1 
Casey,  405  ;  Patterson  v.  Martz,  8  Watts,  374  ;  [Marr  v.  Shaw,  51  Fed.  Rep.  860.7 
Courts  may,  under  such  circumstances,  take  into  account  the  effects  upon  third 
persons  who  have  acquired  rights  by  purchase,  descent,  or  devi.-^e.  Johnson  v. 
Hubbell,  2  Stock.  Ch.  332  ;  Pattcr.son  u  Martz,  8  Watts,  374  ;  Anthony  v.  Leftwich, 
3  Rand.  238.  Contracts  made  in  confederate  currency,  which  was  <lestroyed  by 
the  end  of  the  rebellion,  were  not  enforced  in  Hudson  v.  King,  2  Ilcisk.  501  • 
McCarty  v.  Kyle,  4  Cold.  349  ;  per  contra,  were  enforced  in  Hale  v.  Wilkin^<ou,  21 
Gratt,  75;  Booten  v.  Schaffer,  21  Gratt,  474. 

iJ7i 


262  SPKVlUr   J'KRFOKMANCM    OF   COA'JIi'ArTS. 

any  general  rule  for  their  government.    iSome  examples  are  placed  in 
the  foot-note. (1) 

Sec.  187.  The  rule  concerning  the  time  of  the  hardship  is  subject 
to  modifications  in  its  application  to  certain  special  states  of  fact.  If 
the  subsequent  events  or  change  of  circumstances,  which  have  so 
altered  the  situation  or  relations  of  the  defendant  as  to  render  a  per- 
formance by  liiiu  oppressive,  or  uuduly  onerous,  \\en\  the  acts  of  tlie 
plaintiff,  or  acts  done  by  his  direction  or  under  his  control,  it  is  very 
clear  and  very  just  that  the  hardship  thus  caused,  if  sufficiently  great, 
will  prevent  a  specific  execution  of  the  agreement.  As  the  inequality, 
unreasonableness,  or  difficulty  of  canying  out  the  contract  in  such 
cases,  must  be  referred  directly  to  the  plaintiff,  it  would  be  highly 
inequitable  to  enforce  performance  upon  the  defendant. (2)     But  it  is 

(1)  Willard  v.  Tayloe,  8  Wall.  557  ;  City  of  London  v.  Nash,  3  Atk.  512  ;  1  Vea, 
Sen.  12 ;  Costigan  v.  Hastier,  2  Sch.  &  Lef.  IGO ;  [Leicester  Piano  Co.  v.  Front 
Royal,  etc  ,  Imp.  Co.,  55  Fed.  Rep.  190] ;  City  of  London  v.  Nash,  supra,  is  the 
leading  case.  A  party  had  covenanted  to  re?; ^iZtZ  several  houses.  He  built  only 
two  of  them  and  repaired  the  others,  spending-  between  2,000Z  and  8,000Z,  and 
j)utting  them  in  excellent  condition,  so  that  they  were  made  substantially  as  good 
as  new ;  but  still  he  had  not  performed  his  agreement.  A  bill  was  tiled  to  coin]Kd 
a  speciiic  pei-formance.  To  do  so  defendant  would  be  ol)liged,  among  other 
things,  to  pull  down  all  the  houses  he  had  repaired,  and  thus  all  the  labor  and 
money  spent  npon  them  would  be  thrown  away,  and  the  additional  cost  would  b(^ 
very  great.  Lord  Hahdwiukb  held  1,  that  the  contract  was  one  of  which  the 
specitic  performance  could  be  enforced  ;  but  2,  that  the  enforcement  would  be  such 
a  hardship  ujion  the  defendant,  re(|uiring  such  a  gvnt  outlay,  and  would  be  of  so 
little  benelit  to  the  i)laintiff,  that  the  court  would  not  grant  the  remedy,  either 
whether  defendant  was  merely  mistaken  in  his  intei-pretation  of  the  agreement  or 
whether  he  had,  perhaps,  intentionally  disregarded  it.  This  is  a  very  strong  case, 
indeed,  for  it  will  be  noticed  that  the  hardsliip  in  performance  was  entirely  the 
result  of  defendant's  own  conduct,  and,  i)erhaps,  even  his  designed  conduct ;  and 
also,  that  the  hardship  arose  wholly  from  acts  sul)sequent  to  the  contract,  and 
independent  of  its  jirovisions.  Judge  Story  cites  this  case  as  authori:y  for  the 
rule  which  he  lays  down.  §§  750,  770.  In  Costigan  v.  Hastier,  supra,  a  mortgagor 
agreed  to  give  a  lease,  siipposing  that  he  coidd  obtain  the  mortgagee's  consent ; 
he  did  not  obtain  the  consent,  and  was  so  situated  that  he  could  not  without  great 
difficulty,  pay  olf  and  redeem  from  the  mortgage ;  the  expected  lessee  sued  for  a 
specific  performance,  but  it  was  refused,  because  the  only  way  it  could  be 
enforced  was  by  compelling  the  defendant  to  pay  off  the  mortgage,  and  thus  get 
out  of  the  hands  of  the  moi-tgagee,  and  this  would  be  exceedingly  ojipressive ;  but 
the  court  granted  the  remedy  of  recision,  whi'h  the  plaintiff  had  prayed  for  in  the 
alternative.  [In  Fitzpatrick  v.  Borland,  29  Hun,  291,  pei-formance  was  refused, 
where  litig'ation  for  fifteen  years  had  prevented  the  execution  of  the  contract,  and 
the  property  meanwhile  had  trebled  in  value,  it  being  obvious  that  the  ]iarties 
had  never  intended  the  results  that  had  occurred.  In  Conger  v.  N.  Y.  W.  S.  & 
B.  R.  R.  Co.,  45  Hun,  296,  a  railroad  company  had  contracted  to  build  a  station 
on  the  plaintiff's  land,  but  o\ving  to  a  change  of  route  it  would,  under  the  con- 
tract, have  been  obliged  to  build  where  the  grade  was  heavy,  and  where  the 
Iilaintiff  would  not  be  benefited  and  the  public  ser%'ice  wotdd  be  injured.  On  these 
grounds  specific  perfoi-mance  was  refused.] 

(2)  Duke  of  Bedford  v.  Trustees  of  the  British  Museuui,  2  My.  &  Ke.  552.  is  the 
leading  case.  The  Duke  of  Bedford  occupied  the  Southampton  House,  in  London, 
as  his  family  mansion,  and  in  1675  conveyed  some  land  adjoining  to  Mi-.  Montague> 
for  the  })Ui'pose  of  erecting  thereon  a  dwelling,  with  gardens,  etc.  Mi*.  M  built  a  fine 
house,  long  kno\vn  as  the  "  Montague  House."  He  was  required,  by  the  Duke  ot 
Bedford,  to  enter  into  covenants  not  to  use  the  land  in  cei-tain  modes  w'hich  would 

272 


THE   RKMEhV   MUST  NOT  HE    orFUESSIXE.  263 

equally  cloar  ;iml  ju.st,  ou  the  other  hand,  that  if  the  sub.-^etiuent  evi'iito 
or  cliauyc  ill  ciicuinstauees  whit-h  have  prodiiceil  tlie  liardshni,  wero 
the  acts  of  the  det'eiidaut — the  party  against  whom  the  remcily  is 
sought — ov  were  acts  done  hy  his  direetioa  or  under  liis  conlnd,  tho 
op})ressive  character  of  tlie  performance  cannot  be  a  valid  ol)jectiou 
to  a  specilic  enforcement  of  his  agreement. (1)  Jiut  even  thi-n  the 
performance  nnist  be,  in  the  language  of  an  eminent  judge,  "reason- 
ably possible,"  since  otherwise  it  may  be  refused. (2) 
"What  are  hardships. 

Sec.  188.  Thus  far  1  have  spoken  of  the  time  when  the  hard- 
ship must  take  its  origin,  and  only  incidentally  of  what  tlie 
hardship  itself  nuist  be.  1  now  proceed  to  inquire,  as  far  as  is 
practicable,  into  the  nature  of  the  hardship  which  can  be  a  valid 
objection  to  the  equitable  remedy,  and  some  of  the  common  forms  in 
which  it  appears.    It  may  arise  from  either  of  three  sources :  1st,  From 

interfere  with  the  pleasantness  of  the  Southampton  House  as  a  private  residence  ; 
these  covenants  being-  expi-essly  for  the  pui-pose  of  keejiing  the  Southampton  House 
free  from  any  neigliborhood  annoyances.  Years  after  tiie  Duke  of  Bedford,  and  those 
holding  under  him,  jjulled  down  the  Southampton  House,  and  turned  tlie  wliole 
land  covered  hy  it  and  its  grounds  into  city  property,  running  streets,  and  build- 
ing it  up  with  houses,  stal)les,  etc.  After  that  the  owntn-  of  the  Montague  House 
began  to  do  tiie  same  kind  of  work  on  his  own  property,  and  to  transfoi-rn  it  in 
a  way  which  expressly  violated  all  of  the  aforesaid  covenants.  On  a  bill  by  the 
duke's  successors,  Lord  Eldon.  chancellor,  and  SirT.  Plumbr,  M.  R.,  held  that  as 
the  plaintiffs  had  themselves  so  altered  the  whole  position  and  relations  of  the  mat- 
ter, and  so  changed  their  own  property,  that  it  would  be  veiy  hard  and  unj  ust  on 
the  defendant  to  enforce  the  covenants,  a  specitic  enforcement  by  way  of  injunc- 
tion was  denied,  and  the  plaintiffs  were  left  to  their  action  for  damages,  which  would 
be  hardly  more  than  nominal.  Sec;,  also,  Shi'cwsbury,  etc.,  R'yCo.  u  Stourvalley 
R'y  Co.,  2  De  G.  M.  &  G.  882,  per  Knight  Bruce,  L.  J.  [Cf.  Sayers  v.  CoUyer,  28 
Ch.  D.  103,  and  24  Ch.  D.  180.]  Also,  when  a  plaintiff,  a  covenantee,  ha.s  long 
acquiesced  in  a  departure  from  the  mode  of  renewing  a  lease  provided  foi-  by  a 
covenant,  this  was  held  a  reason  for  refusing  to  enforce  the  covenant  according 
to  its  literal  terms.  Davis  v.  Hone,  2  Sch.  &  Lef.  341.  The  same  doctrine  has 
been  held  in  American  decisions.  Thus,  it  is  said  that  a  contract,  unr«;asonable 
in  its  inception,  and  one  made  so  by  the  subsequent  acts  of  the  plaintiff",  ai'e  to  l)e 
treated  alike  ;  as,  for  example,  when,  through  the  vendor's  fault,  the  property  has 
greatly  depreciated  in  value,  so  that  the  vendee's  interests  might  be  prejudiced, 
a  specitic  performance  at  the  vemlor's  suit  would  be  refused.  Garnett  7'.  Macon, 
6  Call.  308 ;  2  Brock.  185 ;  and  see  Ford  v.  Herron,  4  Miiinf.  316  ;  Clay  i).  Tui-nci-. 
3  Bibb,  52  ;  Marble  Co.  v.  Ripley,  10  Wall.  339.  [See,  also,  Russell  v.  I5aughman. 
94  Pa.  St.  400 ;  Ruff's  Appeal,  117  Pa.  St.  310.] 

(1)  Pembroke  v.  Thorpe,  3  Sw.  443,  n.  per  Lord  Hardwickb  ;  the  case  <if  a  lail- 
road  company  contracting  for  purchase  of  land,  and  then  delaying  to  complete 
initil  its  statutory  powers  have  been  lost  by  efflux  of  time,  is  an  example. 
Hawkes  v.  Eastern  Counties  R'y  Co.,  1  DeG.  M.  &:G.  737,  7.')5  ;  5  H.  L.  Cas.  331 ; 
Helling  v.  Luinley,  3  DeG.  k  J.  493;  [cf.  In  i-e  Great  Nortlici-n  ll'y  (,'...  .-uid 
Sanderson,  25  Ch.  D.  788.] 

(2)  In  Storer  v.  Great  Westei-n  R'y  Co.,  2  Y.  &  C.  C.  C.  52,  per  Knight  Brdce,  V.  C. 
The  case  of  City  of  London  v.  Nash,  3  Atk.  612  ;  1  Ves.  Sen.  12,  is  an  example. 

273 


264  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

the  express  provisions  of  the  contract,  so  that  it  must  be,  in  general, 
assumed  to  have  been  contemplated  by  the  parties  as  a  possible  or 
l)roDable  result  of  their  transaction  ;  2il,  From  something  collateral  or 
incidental  to,  but  still  connected  \vi;li  the  contract,  and  because  not 
involved  in  the  express  provisions  noi  therefore  so  likely  to  have  been 
suggested  to  the  parties  as  possible ;  at  all  events,  there  is  no  pre- 
sumption that  it  was  thus  foreseen ;  and  3d,  From  events  and  circum- 
stances entirely  independent  of  any  provisions  of  the  contract — per- 
haps arising  subsequently — and,  therefore,  a  result  which  the  parties 
could  not  have  expected  nor  anticipated.  In  the  first  of  these  cases 
the  hardship  must  be  much  greater  than  in  either  of  the  others,  in 
order  to  prevent  a  decree  of  enforcement.  And  here  it  is  important 
to  carefully  distinguish  two  matters  which  are,  perhaps,  liable  to  be 
confounded,  but  which  are  really  very  different  both  in  their  objects 
and  in  their  effects.  I  mean  the  objection  of  hardship  in  the  provisions 
of  an  agreement,  urged  as  an  argument  to  prevent  a  court  from  inter- 
preting them  in  a  particular  manner,  and  the  same  objection  when 
the  meaning  of  the  terms  is  established,  urged  as  a  defense  to  the 
relief  of  specific  performance.  The  objection,  when  taken  for  the 
former  purpose  has  little  weight ;  and  in  fact  none  at  all,  unless  the 
construction,  all  other  things  having  being  considered,  remains  fairly 
doubtful.(l)  But  this  rule  of  interpretation  cannot  be  applied  to  the 
objection  when  raised  in  the  second  case,  for  otherwise  it  would 
overthrow  the  whole  equitable  doctrine  respecting  the  enforcement  of 
oppressive  agreements. 

Sec.  189.  It  never  constitutes  a  sufficient  hardship  within  the  mean- 
ing of  the  doctrine,  that  the  final  object  to  attain  which  was  the 
motive  for  the  party's  entering  to  the  contract,  has  wholly  failed,  so 
that  an  accomplishment  of  the  proposed  result  will  be  entirely 
impossible.  While  equity  may  relieve  against  terms  of  a  contract 
which  are  opi)ressive  in  themselves,  or  which  are  made  so  by  external 
facts  intimately  related  with  the  performance,  it  does  not  take  account 
of  the  motives  of  advantage,  or  disadvantage,  which  have  led  a  party 

(1)  As  an  illustration,  in  Prebble  v.  Boghurst,  1  Sw.  309,  329,  an  agreement  was 
under  consideration,  by  one  construction  of  which  the  children  by  a  tirst  mar- 
riage would  have  all  the  estate  of  their  father,  and  the  children  by  a  second 
miriiage — the  defendants — relying  iipon  the  hardship  to  them  resulting  from  this 
construction.  Lord  Eldon  said :  "  Unless  hardship  arises  to  a  degree  of  incon- 
venience and  absurdity  so  great  that  the  court  can,  j  udicially,  say  such  could  not 
be  the  meaning  of  the  parties,  it  cannot  influence  the  decision."  While  this  rule 
is  a  familiar  one  in  respect  to  the  construction  of  agreements,  it  is  wholly  foreign 
to  the  subject  of  specific  perfoi-mance. 
274 


THE  REMEDY  MUST  NOT  BE   OPPRESSIVE.  2(55 

to  enter  Into  the  engagement,  nor  relieve  him  merely  because  his 
calculation  of  prolit  and  loss  turns  out  to  luive  been  erroneous.  11', 
for  example,  a  person  contracts  for  the  purchase  of  a  tract  of  land, 
with  the  intention  of  cutting  it  up  into  city  lots  and  thus  making  a 
large  protit,  the  total  failure  of  his  speculation,  entailing  even  a  heavy 
loss,  will  not,  of  itself,  unconnected  with/ other  facts,  prevent  a  decree 
compelling  him  to  complete  the  purchase  and  pay  the  price.  If  the 
rule  were  otherwise,  the  obligation  to  perform  would  virtually 
depend  upon  the  pecuniary  success  and  advantage  of  contracts. (1) 
In  agreements  made  by  corporations,  also,  the  fact  that  a  performance 
may  produce  inconvenience  or  hardship  to  one  or  more  of  the  corpor- 
ators, furnishes  no  sufficient  ground  for  refusing  to  specilically  enforce 
them  against  the  companies.  (2) 

Sec.  190.  It  is  well  settled,  that  when  the  performance  of  a  con- 
tract "Will  render  the  defendant  liable  to  a  forfeiture,  the  perform- 
ance is  a  hardship,  within  the  meaning  of  the  general  rule,  and  will  not 
be  decreed. (3)    If,  however,  such  liability  is  not  a  necessary,  or  natural 

(1)  Adams  v.  Weare,  1  Bro.  C.  C.  .567.  A  jierson  agreed  to  purchase,  at  a  very 
larg-e  price,  certain  land  for  the  pui-pose  of  erecting  a  mill  thereon  ;  but  before  he 
could  erect  the  mill  the  consent  of  a  corporation  was  necessary,  which,  when 
making-  his  purchase,  he  expected  to  obtain  ;  the  consent,  however,  was  refused, 
and  so  his  speculation  utterly  failed.  Held,  that  these  facts  formed  no  defense  to  a 
suit  against  him  for  a  specific  performance.  Also,  Webb  v.  Direct  London  & 
Portsmouth  R'y  Co.,  9  Ha.  140,  per  Turner,  V.  C.  .  Loi-d  James  Stuart  v.  London 
&  North  Western  R'y  Co.,  15  Beav.  523,  per  Sir  J.  Romilly,  M.  R.  ;  Edwards  i- 
Grand  Junction  R'y  Co.,  1  My.  &  C.  674,  per  Lord  Cottenham  ;  ILawkes  r. 
Eastern  Counties  R'y  Co.,  1  DeG.  M.  &  G.  737,  754.  As  a  general  proposition, 
mere  improvidence  in  making  the  contract,  or  a  decline  in  the  value  of  the  subject- 
matter,  is  not  such  a  hardship  as  will  defeat  a  specific  performance,  in  the  absence 
of  fraud,  or  mistake,  or  positive  wrong-doing  by  the  plaintiff.  Lee  v.  Kirby,  104 
M;iss.  420  ;  Booten  v.  Scheffer,  21  Graft.  474 ;  Corson  v.  Mulvany,  13  Wright,  88, 
97 ;  [Franklin  Tel.  Co.  v.  Harrison,  145  U.  S.  459  ;  Nims  v.  Vaughan,  40  Mich. 
356.]  But  very  improvident  bargains  are,  in  extreme  cases,  not  enforced.  See 
Henderson  v.  Hays,  2  Watts,  148,  151  ;  Campbell  v.  Spencer,  2  Binney,  133. 

(2)  Edwards  v.  Grand  Junction  R'y  Co.,  1  My.  &  C.  674,  per  Lord  Cottenham  : 
"  The  court  cannot  recognize  any  party  interested  in  the  corporation,  but  must 
look  to  the  rights  and  liabilities  of  the  corporation  itself."  Also,  Hawkes  v. 
Eastern  Counties  R'y  Co.,  1  De  G.  M.  &  G.  737, 754,  per  Lord  Cottenham.  [Con- 
versely, the  fact  that  the  vender  is  a  wealthy  corporation  cannot  affect  the  qu(!s- 
tion  of  hardship  ;  In  re  Great  Northern  R'y  Co.  and  Sanderson,  25  Ch.  D.  788.] 
There  is  an  exception,  however,  in  the  case  where  the  iierformance  by  the  direct- 
ors or  managers  of  the  corpoi-ation  would  be  a  breach  of  trust  iis  against  indi- 
vidual stockholders.  Shrewsbury,  etc.,  R'y  Co.  v.  London  &  North  Western  R'y 
Co.,  4  De  G.  M.  &  G.  115  ;  6  H.  L.  Cas.  113. 

(3)  Faine  v.  Bro\vn,  cited  2  Ves.  Sen.  307.  Where  a  person  wsts  devisee  of  a 
small  estate,  but  on  condition  that  if  he  sold  it  within  twenty-Hv<!  years  his  bi-othn- 
would  be  entitled  to  one-half  of  the  pui-chase-money.  He  contracted  to  sell  the 
la,nd ;  hut  Lord  Hardwicke,  in  a  suit  by  the  vendee,  refused  to  decree  a  per- 
formance, holding  that  the  forfeiture  was  a  STifRcit^nt  hardship  to  pn-vcnt  the 

27.^) 


260  SPECIFIC  pei;foi:m.\kce  of  compacts. 

effect  of  the  agreement  when  originally  made,  but  arises  from  the' 
subsequent  acts  or  omissions  of  the  defendant  himself,  it  will  not  avail 
to  prevent  a  specific  enforcement.(l)  A  special  rule  has  been  estab- 
lished by  the  English  decisions,  that  where  a  vendor  is  bound  by 
certain  covenants  in  reference  to  the  land,  and  has  not  been  expressly 
indemnified  against  them  by  the  purchaser  in  their  contract,  the 
vendee,  on  becoming  aware  of  them,  either  through  provisions  in  the 
agreement  itself  or  after  the  agreement  has  been  concluded,  cannot 
compel  the  vendor  to  perform  without  giving  him  an  indemnity,  and 
will  himself  be  compelled  at  the  suit  of  the  vendor  either  to  indemnify 
him  against  such  covenants  or  to  rescind  the  agreement.  The  reason 
given  is,  that  otherwise  the  vendor  would  cease  to  be  owner  of  the 
land,  and  yet  remain  personally  liable  in  respect  to  the  land.(2)  This 
rule  seems  necessary  in  England,  where  the  practice  as  to  conveyanc- 
ing is  so  complex,  and  where  there  is  no  general  system  of  registry ;  in. 
this  country  where  the  registry  laws  prevail,  and  furnish  the  means 
for  ascertaining  all  the  particulars  concerning  titles,  there  is  no 
apparent  necessity  for  the  rule,  and  it  probably  would  not  be  followed. 
Several  particular  cases  of  hardship,  which  admit  of  no  general  classi- 
fication, are  placed  in  the  foot-note. (3) 

relief.  Peacock  v.  Penson,  11  Beav.  855.  A  lessee  contracted  to  sell  certain. 
building  lots,  and  to  make  a  road,  but  found  that  he  could  not  make  the  road 
without  rendering  himself  liable  to  forfeit  the  land  through  which  it  would  run, 
and  which  he  held  on  a  lease,  or  liable  to  be  sued  by  the  lessor.  The  court  there- 
upon, granting  to  the  vendee  a  specific  performance  of  the  agreement  to  sell, 
refused  to  enforce  this  stipulation,  but  awarded  compensation  in  respect  of  it. 
Henderson  v.  Hays,  2  Watts,  148,  151 ;  Campbell  v.  Spencer,  2  Binney,  133.  [In 
further  sui^port  of  the  text,  see  Lucas  v.  Baldridge,  32  Mo.  App.  362  ;  Nelson  v. 
Kelly,  (Ala.)  8  So.  Rep.  690.] 

(1)  See  Helling  v.  Lumley,  3  De  G.  &  J.  493,  498,  499,  per  Turner,  L.  J.  "The 
court  must  look  at  the  fact  by  whose  acts  and  conduct  the  forfeitui-e  would  be 
occasioned.  The  court  will  not  permit  a  defendant  to  put  himself  in  such  a  posi- 
tion as  that  his  performance  of  his  agreement  shall  create  a  forfeiture,  and  then 
to  tm-n  round  and  say  that  the  plaintiff  shall  not  have  a  specific  performance  of 
the  agreement,  because  the  defendant  has.  by  his  own  act,  enabled  the  landlord 
to  enter  upon  the  agreement  being  performed.  *  *  *  jf  then  he  (defendant)' 
has  put  it  out  of  his  jiower  to  perform  the  agreement  constituted  by  the  reserva- 
tion, the  consequences  niust  fall  upon  him,  and  not  on  the  plaintiff. "  For  the 
facts  of  this  case,  see  ante,  under  §  180.  [See,  also.  Shade  -?).  Oldroyd,  39  Kan. 
313.  If  the  terms  of  the  contract  are  susce^jtible  of  two  interi^retations,  it  will 
be  so  construed  as  not  to  work  a  forfeiture  ;  Jacobs  v.  Spalding,  71  "Wis.  177,  190  ] 

(2)  Moxhay  v.  Inderwick,  1  De  G.  &  Sm.  70S  ;  Lukey  v.  Higgs,  24  L.  J.  Ch.  49.5. 

(3)  "Wedgwood  v.  Adams,  6  Beav.  600.  Trustees  united  with  their  beneficiaries 
in  a  contract  of  sale,  and  personally  covenanted  that  the  land  shoulil  lie  cleared 
fi'om  all  incumbrances ;  the  i)urchasc-money  did  not  ajipear  to  be  sufficient  to  pay 
off  these  incumbrances  ;  nor  did  it  appear  how  much  the  deficiency  would  be.  On 
this  account,  because  the  trustees  had  thus  assumed  a  heavy  pecuniary  burden^ 

276 


THE   REMEDY  MUST  NOT  BE    OPI'RESSI  VE.  267 

Sec.  191.  Contracts  for  the  sale  of  reversionary  and  other  fu- 
ture estates,  are  always  legaided  by  the  court  of  C(iuiry  with  gicat 
tiiii?} »iciou,  and  arc  enforced  with  tlie  greatest  caution  on  account  of  tlioir 

without  any  real  interest,  wliieh  was  (loemed  a  g-reat  hardsliip,  the  coui-t  rel'ii.seil 
to  coiai)el  a  specitic  iierlbi-niauce,  althoiitch  the  ])ur(:haser — the  plaintilV — was  in 
possession  of  the  property,  and  to  g'et  him  out  would  itself  be  a  matter  of  g-reat 
difficulty  Watson -«.  Marston,  4  De (i  M.  &  G  230.  A  mortg-ag-ee,  with  ])ower 
of  .^^ale,  liad  obtaineil  a  tleci'-ee  of  foreclosure,  and  intentled  to  sell  inider  it  as  the 
(nvner  lie  made  a  contract  of  sale,  but  by  accident  in  drawing  ii]»  the  W)-itt(>n 
agreement  a  clause  was  inserted  whereby  he  was  made  to  sell  as  a  mortgagee 
under  his  power  The  vendee  insisted  on  a  conveyance  und<!r  the  power  in 
accordance  with  this  stipulation,  while  the  vendor  was  willing  to  con\-ey  as  owner 
under  the  deci-ee.  The  coui-t  held,  in  a  suit  by  the  puirhascr,  that  the  risk 
which  the  vendor  would  }-uu  of  oi)ening  the  foreclosure  decree  by  a  sale  under  his 
power  w^as  such  a  hardship  as  he  should  not  be  forced  to  assume,  and,  therefore, 
refused  to  grant  the  plaintill'any  relief  except  that  of  a  con\-eyance  by  the  vendor 
as  owner  under  the  decree  In  this  country  such  a  controvei-sy  could  not  arise, 
since  a  title  under  a  foreclosure  would  be  very  much  iireferred  to  a  title  under 
the  power  of  sale  contained  in  the  mortg-ag'e  In  Dean  of  Ely  v.  Stewart,  2  Atk.  44, 
an  ecclesiastical  lease  contained  a  covenant,  on  part  of  the  lessee,  to  leave  tlie  build- 
ings in  repair  It  appearing  that  the  same  descript:n<.  of  the  l)uil(ling-.s  liad  been 
continued  without  variation  from  lease  to  lease  for  alo  ig  time,  whence  it  might 
be  inferred  that  the  particular  buildings  in  <iuestion  v.  ere  not  in  being  at  the  time 
when  the  original  lease  was  made.  Lord  IIakdwicku  refused  to  enforce  this  cove- 
nant on  the  ground  of  its  hardship.  Talbot  v.  Ford,  13  Sim.  173.  A  lessee  of 
mines  covenanteil,  that  if  the  lessor  should  at  any  time  before  the  end  of  the  lea:  e 
give  notice  of  his  intenticm  to  take  the  machinery  and  fixtures,  etc.,  the  lessee 
would,  at  the  end  of  the  lease,  give  up  all  the  articles  mentioned  in  the  notice 
upon  the  lessoi-'s  paying-  their  value,  to  be  ascertained  by  valuers.  The  court 
held  this  covenant  to  be  so  oi:)pressive  and  injurious  to  the  lessee,  that  it  both 
refused  to  decree  its  sjiecific  i^erformance  oi-  to  restrain  its  breach  by  injunctien. 
In  Hamilton  1)  Grant,  3  Dow.  P.  C.  33,  47,  A.,  upt)n  B.'s  agreeing  not  to  join  in 
barring  an  entail,  contracted  to  convey  to  B.,  his  heirs  or  assigns,  the  fee  of  tw  h 
parts  of  the  estates,  which  lay  in  three  counties,  as  he  or  they  should  choose,  to 
the  yearly  value  of  £200.  The  House  of  Lords  refused  a  s]iecific  performance, 
among  other  reasons,  because  of  the  great  inconvenience  and  hardshiji  which  this 
option  might  bring  ujjon  the  party.  In  Kimberly  v.  Jennings,  6  Sim.  340,  a  con- 
tract by  which  a  young  man  virtually  put  himself  under  the  power  of  a  busiiiest. 
firm  for  his  entire  life  as  their  clerk,  was  held  to  be  so  oppressive  that  its  execii- 
tion  was  refused.  [In  Swint  v.  Caj-r,  70  Ga.  322,  a  contract  extoi-ted  by  thi-eats 
of  i^rosecuting  the  defendant's  son,  was  not  enforced.]  But  in  Chat  on  v.  Gower. 
Finch,  1G4,  where  a  life-tenant  had  agi-eed  to  give  a  mining-  lea.se,  and  when  suetl 
for  a  specific  performance  objected  that  as  a  life-tenant  he  had  no  i)Ower  to  g-ive 
such  a  lease,  and  woidd  be  liable  for  waste.  Lord  NoTTi\(iHAM  only  admitteil  this 
defense  pai-tially,  and  decreed  that  he  should  convey  as  far  as  he  could.  It  should 
he  remarked,  that  in  a  class  of  c-ases,  analogous  to  this,  the  court  comjiels  a  jiar- 
tial  enfoi'cement  instead  of  denying  all  relief.  See,  also,  the  cases  hei-elofore 
cited.  Willard  v  Tayloe,  8  Wall.  557  ;  Fish  v.  Lesei-,  CO  111.  304  ;  Stone  v.  P'-att, 
25  111.2.");  Blackwildei-  v.  Loveless,  21  Ala.  371;  [Leicester  Piano  Co.  v.  Fi-ont 
Royal,  etc.,  Imp.  Co.,  55  Fed.  Rep.  190  ;  Coe  v.  N.  J.  Midland  Ry.,  31  N.  J.  E(i. 
105.  In  Gotthelf  i\  Stranahan,  138  N.  Y.  34.5,  the  defendant  conti-acted  to  sell 
and  convey  to  the  jilaintill,  free  from  all  incumbrances,  by  warranty  deed,  upon 
a  day  stated,  and  upon  ]iayment  a,t  that  time  of  a  portion  of  the  consideration, 
certain  ])remises  in  the  city  of  Brooklyn.  By  mutual  consent  of  the  jjarties  the 
performance  of  the  conti-act  was  delayed  from  time  to  time  for  a  period  of  about 
three  months.  After  the  day  fixed  by  the  conti-act  for  performance,  and  duiing 
the  period  performance  was  so  delayed,  certain  a'isessments  were  levied  upon  the 
land  and  contirmiMl  by  the  i:ity.  It  was  held,  that  even  if  the  contract  by  its  true 
interpretation  imposed  u])on  the  defendant  the  leg'-al  obligation  to  i)ay  the  assess- 
ments, it  would  be  inequitable  to  enforce  the  conti-a(-t  by  recpiiring  the  ilefendant 
to  covenant  against  them.  In  Blake  -j'.  Flatley,  44  N  J  'E(].  228,  specific  jierform- 
ance  was  refused  because  the  value  of  the  jiroperty  of  which  a  conveyance  was 
sought  was  so  small  as  to  amount  to  little  more  tha.\  the  usual  costs  of  an  unde- 
fendcl  .'■  ;it  in  chancery]. 

277 


268  SFKilFIC   FKUFOHMASCE    OF  CONTRACTS. 

always  probable  and  almost  always  certain  hardship  upon  the  vendor. 
It  is  a  familiar  rule  in  England,  where  such  transactions  are  much  more 
frequent  than  in  this  country,  that  agreements  by  heirs  and  others 
similarly  situated,  to  sell  their  expectant  or  reversionary  interests  for 
any  consideration  less  than  the  full  value,  will  never  be  specifically 
enforced,  since  the  vendor  is  necessarily  placed  at  the  mercy  of  the 
buyer.(l)  In  all  such  cases  the  burden  is  thrown  upon  the  purchaser 
of  demonstrating  the  fairness  of  the  arrangement,  and  of  proving 
that  the  price  was  the  full  value  of  the  property-;  failing  in  this,  he 
can  obtain  no  relief  in  equity. (2)     This  rule,  however,  is  not  applied 

(1)  Playfoni  v.  Playford,  4  Hare,  546. 

(2)  Kendall  v.  Beckett,  2  R.  &  My.  88  ;  Hincksman  v  Smith,  3  Russ.  433.  The 
principle  of  this  rule  will  doubtless  be  applied  in  analogous  cases  by  the  Ameri- 
can courts  of  equity,  although  sales  by  heirs  of  their  expectancies,  etc.,  are, 
from  the  nature  of  our  social  habits  and  real  estate  law,  not  common  in  the 
United  States.  The  following  American  cases  are  somewhat  analogous  in  prin- 
ciple to  the  class  of  decisions  referred  to  in  the  text,  and  seem  to  be,  in  part  at 
least,  controlled  by  the  same  docti'ine.  Mercier  v.  Mercier,  50  Geo.  566.  A 
father  having  to  children,  A.  and  B.,  had  threatened  to  disinherit  A.  in  case  A. 
contracted  a  certain  marriage  ;  the  two  children,  therefore,  made  an  agreement 
by  which  the  property  that  the  father  might  bequeath  to  B.  alone,  should  be 
divided  equally  between  them  ;  held,  that  this  agreement  would  not  be  enforced. 
See  this  case  for  a  discussion  of  the  question,  when  contracts  to  divide  expectant 
estates  will  be,  or  will  not  be  specifically  enforced.  The  contract  of  an  heir 
expectant  to  convey  what  land  he  may  inherit,  will  not  be  enforced.  Lowry  v. 
Sjjear,  7  Bush.  (Ky.)  451 ;  hni 'per  contra,  see  Power's  Appeal,  63  Pa  St.  443; 
Mastin  v.  Marlow,  65  N.  C.  695,  which  hold  that  such  a  contract  is  binding,  and 
a  siiecific  performance  thereof  will  be  compelled.  [See,  also,  Clendenning  v. 
Wyatt,  (Kan.)  38  Pac.  Rep.  792  (Jan.  5,  1895),  where  such  a  contract  was  enforced  ] 
Courts  of  equity  will,  under  special  circumstances,  enforce  a  contract  to  make  a 
will  or  to  make  a  certain  testamentary  disposition  ;  and  this  may  be  done  even 
when  the  agreement  was  parol,  where  in  reliance  upon  the  contract  the  promisee 
has  changed  his  condition  and  relations,  so  that  a  refusal  to  complete  the  agree- 
ment would  be  a  fraud  upon  him.  The  relief  is  granted,  not  by  ordering  a  will 
to  be  made,  but  by  regarding  the  property  in  the  hands  of  the  heirs,  devisees, 
assignees,  or  representatives  of  the  deceased  promisor,  as  impressed  with  a  trust 
in  favor  of  the  plaintiff',  and  by  compelling  defendant,  who  must  of  course  belong 
to  some  one  of  these  classes  of  persons,  to  make  such  a  disposition  of  the  property 
as  will  carry  out  the  intent  of  the  agreement.  See  the  follomng  cases  which 
treat  this  doctrine  under  various  circumstances :  Logan  v.  Wienholt,  7  Bligh,  53, 
54  ;  Moorhouse  v.  Colvin,  9  Eng.  L.  &  Eq.  136  ;  Van  Duyne  v.  Vreeland,  1 
Beasley  Ch.  142  ;  3  Stockf.  370  (a  very  able  and  instructive  case) ;  "Wright  v. 
Tinsley,  30  Mo.  389  ;  Gupton  v.  Gupton,  47  Mo.  37 ;  Sutton  v.  Hayden,  62  Mo 
101 ;  Frisby  v.  Parkhurst,  29  Md.  58  ;  but  see  Cox  v.  Cox,  26  Gratt  305  ;  Sprinkle 

278 


268 


SPECIFIC  PERFORMANCE   OF  CONTRACTS. 


where  the  expectant  or  reversionary  estates  are  sold  at  public  auction. (3) 
Nor  does  the  rule  apply  when  both  the  reversioner  and  the  life-tenant 

V.  Hayworth,  20  Gratt  384,  in  which  the  agreements  were  not  enforced.  [Sec, 
also,  Cai-inichael  v.  Carinichael,  72  Mich.  70  In  Pflugar  v.  Pultz,  4:}  N.  J.  Eij. 
440,  the  agreement  to  devi.se  was  specitically  enfoi-ced  by  enjoining  the  defendant 
who  hail  repudiated  his  contract,  from  conveying-  the  property  to  another.  In 
re  Parkin,  [1892]  3  Ch.  510,  the  contract  was  not  enforced  when  made  by  the 
mere  donee  of  a  testamentary  power  of  appointment.  Roehl  ^^.  Haumes-ser,  414 
Ind.  311,  and  cases  cited  Such  agreement  is  within  the  statute  of  frauds. 
Roehl  V.  Haumesser,  114  Ind.  311.  Part  performance  will  take  it  out  of  the 
statute.  Sharkey  v.  McDermott,  91  Mo  647  ;  Sherman  v  Scott,  27  Hun,  331  ; 
Warren  I'-  Warren,  105  111.  568;  Smith  v.  Younn,  110  111  142;  Neel  v  Noel,  80 
Va.  584 ;  Roehl  v.  Haamesser,  114  Ind  311  ;  Bi-inton  v.  Van  Cott,  (Utah)  33  Pac;. 
Rep.  218;  Smith  v.  Pierce,  (Vt.)  25  Alt.  Rep.  1092,  see  Hale  v.  Hale,  (Va.)  10  S. 
E.  Rep.  739.  Such  agreements  and  gifts  of  real  estate  to  take  effect  on  death  of 
donor  arise  frequently  between  parents  and  children,  the  former  offering  to  con- 
vey their  farms  or  homes  to  the  child  or  children,  who  will  stay  with  them  and 
care  for  them  and  the  homestead.  Where  the  child  has  incurred  substantial 
detriment,  or  labored  for  tlie  parent,  reljang-  upon  such  promise,  the  court  will 
enforce  it ;  or  where  there  has  been  a  parol  gift  accompanied  by  possession  taken 
and  improvements  made,  expenditures  or  such  other  part  performance  as  will 
clearly  take  a  parol  contract  to  convey  out  of  the  statute,  the  court  will  enfoj-ce 
such  gift.  Sharkey  v.  McDermott,  91  Mo.  047  ;  Noel  V).  Neel.  80  Va.  584  ; 
Hughes  V.  Huges,  72  Ga.  173  ;  Studer  v.  Seyer,  69  Ga.  125  ;  Bohanah  v.  Bohanan, 
90  111.  591  ;  McDowell  v.  Lucas,  97  111.  489  ;  Warren  v.  Warren,  105  111.  508  ; 
Smith  V.  Younn,  110  III  142^  Irwin  v.  Dyke,  114  111.  302.  So  also,  in  Anderson 
V.  Scott,  94  Mo.  637  ;  Bourget  v.  Monroe,  58  Mich.  563  ;  Kofka  v.  Rosicky,  (Nebr.) 
59  N.  W  Rep.  788.  If,  in  carrying  out  his  intentions,  the  father  makes  a  void 
will,  such  act  will  not  prejudice  the  son's  acts.  Hiatt  v.  Williams,  72  Mo.  214.  If 
dependant  upon  a  condition,  as  for  support  for  life  of  donor,  such  agreement 
may  be  enforced  on  security  for  such  condition  being  given.  Wamsley  v.  Lan- 
ciann,  68  Ga.  556.  An  agreement  to  make  a  will  void,  becaiLse  made  imder  a 
power  that  did  not  give  authority  to  make  such  agreement  cannot  be  enfoi-ced. 
Wilks  V.  Bums,  60  Md.  64.  But  because  of  the  opportunities  for  fraud,  the 
courts  generally  require  positive  proof  of  such  contract.  Edwards  v.  Morgan, 
100  Pa.  St.  330 ;  Shellhamer  v.  Ash,  83  Pa.  St.  24 ;  Griggsby  v.  Osbom,  82  Va. 
371 ;  Beal  v.  Clark,  71  Ga  818  ;  Russell  v.  Switzer,  63  Ga.  711  ;  Woods  v.  Evans, 
113  111.  186 ;  Wallace  v.  Rappleye,  103  lU.  229 ;  Brown  v.  Brown,  29  Hun.  498  ; 
McKinnon  v.  McKinnon,  46  Fed.  Rep.  713>] 

(3)  Shelly  v.  Nash,  3  Mad.  232.  There  are  two  grounds  upon  which  this 
exception  rests  •  1.  The  essential  nature  of  an  auction  sale,  which,  being  public 
and  open  to  competition,  takes  away  the  opportunity  of  fraud,  overreacdiing  and 
oppression  in  the  bargaining.  In  the  language  of  Sir  John  Le.\ch,  M.  R.,  jus 
used  in  the  case  just  cited  (p.  236) :  "There  being  no  treaty  between  the  vendor 
and  purchaser,  there  can  be  no  opportunity  for  fraud  or  imposition  on  the  jiart  of 
the  purchaser.     The  vendor  is  in  no  sense  in  the  power  of  the  purcha,ser."    2.  The 

279 


INADEQUACY  OF  THE   CONSIDER ATIOX.  269 

unite  ia  the  agreement  of  sale,  since  the  reason  of  it  thus  fails,  the  two 
roi)resenting  the  whole  estate  as  a  unit,  and  therefore  standing  upon 
an  equal  footing  with  the  purchaser. (1)  This  exception,  however,  is 
subject  to  the  limitation  that  the  present  interest  sold,  with  the  future 
estate,  must  be  a  substantial  one  and  considerable  in  amount ;  the 
joining  of  any  present  interest  or  interest  in  possession  in  the  con- 
tract, does  not  obviate  the  rule  as  to  reversions.(2)  Finally,  a  con- 
tract of  sale  will  not  be  enforced  against  a  purchaser,  whenever  from 
the  situation  of  the  subject-matter,  or  other  circumstances,  he  could 
have  no  reasonable  or  substantial  enjoyment  of  the  property  which  he 
had  bought.  (3) 


SECTION  X. 

Inadequacy  of  the  cotisideration. 

Section  192.  Intimately  connected  Avith  the  subjects  treated  of  in 
the  two  preceding  sections  is  that  of  inadequacy  in  the  considera- 
tion, which  would  seem  to  be  merely  a  particular  instance  of  unfair- 
ness and  hardship ;  and,  in  the  absence  of  authority,  to  be  governed 
by  the  same  doctrines  which  have  been  settled  concerning  those  inci- 
dents of  an  agreement.  This  speculative  opinion,  however,  would  be 
misleading.  The  courts,  on  grounds  of  expediency  and  convenience 
rather  than  of  principle,  have   established  different  rules  concerning 

market  value  of  the  land  is  the  only  test  by  which  courts  decide  upon  the  value 
of  the  land,  and  in  all  judicial  proceedings  an  auction  sale,  when  reg-ularly  and 
lairly  conducted,  is  always  regarded  as  the  most  direct  and  certain  manner  of 
ascertaining-  what  that  market  price  is.  It  is  for  this  reason  that  all  judicial 
sales  are  required  to  be  by  public  auction,  and  also  all  sales  by  private  persons, 
which  are  intended  to  cut  off  the  i-ights  of  others,  to  foreclose  liens,  and  the  like. 
Of  course,  if  it  could  be  shown  that  the  auction  was  a  mere  form,  and  that  it  was 
prearranged  so  as  to  cut  off  competition  or  carry  out  a  previous  bargain,  this 
exception  would  fail.  See  Wardle  v.  Carter,  7  Sim.  490  ;  Borell  v.  Dann,  2  Hare, 
452,  per  Wigram,  V.  C.  ;  Earl  of  Aldborough  v.  Trye,  7  CI.  &  Fin.  436,  460 ; 
Edwards  v.  Burt.  2  DeG.  M.  &  G.  55. 

(1)  Wood  V.  Abrey,  3  Mad.  417,  in  which  it  was  said  that  the  life-tenant  and 
the  reversioner  joining  in  the  contract,  "form  a  vendor  with  a  jiresent  interest," 
and  see  Wardle  v.  Carter,  7  Sim.  490. 

(2)  Davis  V.  Duke  of  Marlborough,  2  Sw.  154,  per  Lord  Eldox  ;  Earl  of  Port- 
more  V.  Taylor,  4  Sim.  182. 

(3)  Denne  v.  Light,  26  L.  J.  Ch.  459  ;  3  Jur.  (N.  S.)  627,  a  person  bought  apiece 
of  land  to  which  there  was  no  way,  the  contract  being  silent  in  respect  to  a  way. 

280      4 


270  SPECIFIC   PEKFOIiMANCK    OF  CONTRACTS. 

inadequacy  of  cousiidemtiou,  which  it  is  the  object  of  the  present 
&;ectiou  to  state  and  explain.  Inadequacy  may  exist  either  in  the 
purchase-pric(\  or  in  tlie  thing  itself  which  is  the  subject-matter  oi' 
tlie  contract — as,  for  example,  the  laud  agreed  to  be  sold — the  latter 
case  being  the  same  as  exorbitancy  in  the  price. (1)  As  an  incident 
of  the  contract,  therefore,  it  necessarily  im,plies  that  tlie  price  is  either 
too  small  or  too  gTeat.  Inadequacy  in  the  price,  that  it  is  too  small, 
will  be  objected  by  the  vendor,  either  as  a  defense  to  a  suit  brought 
ciffainst  him  for  a  specific  performance,  or  as  the  ground  of  a  suit 
brought  hi/  him  for  a  recision.  Inadequacy  in  the  subject-matter, 
that  the  ju-ice  is  exorbitant,  will  be  objected  by  the  vendee  in  a  suit 
against  him  to  enforce  a  specific  performance,  or  in  a  suit  by  him  to 
obtain  a  recision.  It  is  very  evident  that  the  former  objection  is  more 
susceptible  of  judicial  determination  than  the  other.  A  court  can, 
with  comparative  ease,  ascertain  whether  the  price  i)aid  for  certain 
land  is  less  than  its  fair  market  value  ;  but  may  find  it  impossible  to 
decide,  with  any  accuracy,  of  how  great  or  of  how  little  value  a  par- 
ticular parcel  of  land  might  appear  to  a  particular  individual,  to  fix 
the  amount  in  other  words,  which  he  ought  to  be  willing  to  pay  for  it, 
and  which  he  ought  not  to  exceed.  Inadequacy,  in  both  these  forms, 
maybe  considered:  1st,  By  itself  free  from  any  other  fact;  2d,  As 
connected  with  other  facts  and  circuiiist-uici^sof  overreaching,  conceal- 
ment, and  the  like.     I  shall  follow  this  order  of  treatment. 

Inadequacy,  pure  and  simple ;  when  a  ground  for  rescission. 

Sec.  193.  The  doctrine  is  well  settled,  both  in  England  and  in 
this  country,  that  mere  inadequacy  of  consideration,  either  in  the 
price  or  in  the  subject-matter,  unaccompanied  by  other  elements 
of  bad  faith,  is  never  a  sufficient  ground  for  rescinding  a  contract 
on  account  of  the  hardship  thereby  resulting  from  a  performance; 
unless  the  inadequacy  is  so  excessive  as  to  furnish  satisfactory  evi- 
dence of  fraud,  and  the  fact  of  fraud  established  in  this,  as  well 
as  i!i  any  other  manner,  is  always  fatal  to  the  validity  of  an  agree- 
ment. In  other  words,  mere  inadequacy  of  prite,  considered  as 
an  element  in  suits  brought  for  the  rescinding  of  contracts,  is 
never  an  end,  but  only  a  means  in  the  judicial  proceeding;  it  is 
simply  evidence  of  fraud.      Since  the  principle  is  now  universally 

the  consideration  had  failed,  see  Butman  v.  Porter,  100  Mass.  337  ;  [Wason  t>. 
Fenno,  129  Mass.  40.5]. 

281 


AADEQUACY  OF  THE   CONSIDERATION.  271 

admitted  that  fraud  is  a  fact,  inferred  like  other  conclusions  of  fact 
from  the  evidence,  with  the  aid  of  convenient  presumptions,  no  rule 
of  law  can  be  laid  down  as  to  the  amount  of  inadequacy  necessary  to 
produce  the  resulting  fraud.  I  think,  also,  for  the  same  reason,  that 
the  old  nuinner  of  stating  the  doctrine,  viz. :  that  the  inadequacy  must 
be  conclusive  evidence  of  fraud,  is  erroneous.  The  true  doctrine  is, 
that  fraud  is  always  a  sufficient  ground  for  the  recision  of  agreements ; 
inadequacy  of  consideration  is  evidence  of  fraud,  slight  or  powerful, 
according  to  its  amount,  and  other  circumstances ;  when  it  is  satis- 
factory, or  in  other  words,  when,  from  the  proof  of  the  inadequacy,  the 
triers,  jury  or  judge,  are  convinced  that  fraud,  as  a  fact,  did  exist, 
then  the  recision  follows  as  a  necessary  consequence,  by  operation  of 
law.  Instead,  therefore,  of  saying  that  the  inadequacy  must  be  so 
great  as  to  be  conclusive  evidence  of  fraud,  I  prefer  to  state  the  rule 
as  follows  :  When  the  inadequacy  of  the  consideration  is  such  as  to 
be  satisfactory  evidence  of  fraud,  the  fraud,  so  proved,  is  a  ground  for 
Betting  aside  the  contract.(l) 

When  defeats  a  specific  performance. 

Sec.  194.  The  important  question  for  our  consideration  is :  How  far 
will  the  inadequacy  avail  as  a  defense  to  the  relief  of  specific  per- 

(1)  Griffith  V.  Spratley,  1  Cox,  383,  388,  389  ;  Fox  v.  Mackreth,  2  Dick.  689  ; 
Stilwell  V.  "Wilkins,  Jac.  280 ;  Osgood  v.  Franklin,  2  Johns.  Ch.  1 ;  "Wintermute  v. 
Snyder,  2  Green's  Ch.  489  ;  McCormick  v.  Malin,  5  Blackf.  ,509 ;  Knobb  v.  Lind- 
say, 5  Ham,  4(58  ;  Wright  v.  Wilson,  2  Yerg.  294  ;  Hai-deman  v.  Burge,  10  Yerg. 
202  ;  Green  v.  Thompson,  2  Ired.  Eq.  365  ;  Butler  v.  Haskell,  4  Dessau  Eq.  651 ; 
Juzan  V.  Toulmin,  9  Ala.  GG2  ;  Delafield  v.  Anderson,  7  Smed.  &  Mar.  630 ; 
Holmes  v.  Fresh,  9  Mo.  201  ;  White  v.  Flora,  2  Overton,  426  ;  Stubblefield, 
V.  Patterson,  3  Heyw.  128  ;  Newman  v.  Meek,  1  Freem.  Ch.  441  ;  Kidder  v. 
Chamberlin,  41  Vt.  62 ;  Worth  v.  Case,  42  N.  Y.  362  ;  Davidson  v.  Little,  10 
Harris,  245,  252 ;  Harris  v.  Tyson,  12  Harris,  347,  360  ;  Cribbins  v.  Markwood 
13  Gratt.  495  ;  Eyre  v.  Potter,  15  How.  (U.  S.)  42.  Where  it  appears  that  the 
pai'ties  have  knowingly  and  deliberately  fixed  upon  any  price,  however  great  or 
however  small,  there  is,  of  course,  no  occasion  nor  reason  for  interference  by  a 
court,  for  owners  have  a  right  to  sell  their  property  for  what  they  please,  and 
purchasers  have  a  right  to  pay  what  they  please.  See  Hai-ris  v.  Tyson,  12  Har- 
ris, 360  ;  Davidson  v.  Little,  10  Harris,  245,  247.  But  where  there  is  no  evidence 
of  such  knowledge,  intention  or  deliberation  by  the  parties,  the  disproportion 
between  the  value  of  the  subject-matter  and  the  price,  may  be  so  great  as  to 
warrant  the  court  in  inferring  therefrom  the  fact  of  fraud.  Such  a  gross  inade- 
quacy or  disiiroportion  between  the  value  of  the  subject-matter  and  the  price, 
will  certainly  call  for  explanation,  and  shift  the  burden  of  proof  upon  the  party 
seeking  to  enforce  the  contract,  and  call  upon  him  to  show,  affirmatively,  that  the 
price  was  the  result  of  a  deliberate  and  intentional  action  by  the  parties  :  and  if 
he  fails  to  prove  such  action,  the  fact  of  fraud  will  be  more  readily  and  clearly 
inferred.  This,  as  it  seems  to  me,  is  the  true  theory,  and  the  language  of  some 
of  the  earlier  cases  upon  this  subject,  is,  therefore,  misleading.  See  Davidson  v. 
Little,  10  HaiTis,  245,  247,  and  other  cases  cited  in  the  former  part  of  this  note. 

282 


272  SPECIFIC  PERFORMANCE   OF  COy TRACTS. 

formance  ?  The  earlier  English  cases  professedly  treated  it  merely  as 
a  particular  instance  of  unfairness,  or  hardship,  and  the  rule  was 
established  by  them,  for  a  while,  that  simple  inadequacy,  either  in 
the  price  or  in  the  value  of  the  subject-matter,  wholly  independent  of 
any  suggested  fraud— that  is,  without  treating  it  as  furnishing  evi- 
dence of  fraud— may  prevent  the  court  fro;u  decreeing  the  execution 
of  an  agreement,  on  the  ground  that  such  inadequacy  renders  the 
contract  unfair,  unequal,  or  oppressive.(l)  The  same  opinion  has 
been  maintained  by  American  judges  of  the  greatest  ability  and 
experience;  and  the  rule  still  remains  in  several  of  the  states.(2) 
Notwithstanding  these  early  authorities  Lord  Eldon,  as  Chancellor, 
and  Sir  William  Grant,  as  M.  R.,  introduced  the  doctrine  which  has 
since  their  time  prevailed  unchallenged  in  the  English  court,  and 
has,  although  not  without  strong  dissent  and  protest,  been  generally 
followed  throughout  the  United  States,  that  mere  inado(iuacy  in  the 
price  or  the  subject-matter  is  not  such  a  hardship  or  unfairness  as  will 
prevent  the  enforcement  of  contracts ;  but  that  when  the  inadequacy 
furnishes  satisfactory  evidence  of  fraud,  the  remedy  of  specific  per- 
formance will  be  refused.  In  short,  inadequacy  as  a  negative  defense 
against  the  relief  of  execution,  and  as  an  affirmative  ground  for  the 
relief  of  recision,  are  put  upon  an  equal  footing  and  governed  by  the 

(1)  In  Tilly  v.  Peers,  cited  arg-.,  10  Ves.  301,  Ch.  B.  Eykk  declared,  conceming- 
such  an  agreement,  even  where  there  was  no  suggestion  of  fraud,  that  "  the 
court  upon  the  mere  consideration  of  its  being'  so  hard  a  bai-gain  will  not  enforce 
it."  In  Day  v.  Newman,  2  Cox,  77,  cited  arg-.,  10  Ves.  300,  a  contract  was  made 
for  the  sale  of  an  estate  worth  10,000Z,  for  G,000l  down  and  14,000Z  payable  at  the 
death  of  a  person  sixty-five  years  old,  without  any  fraud,  pressure,  or  other  ine- 
quitable incidents.  Lord  Alvanley  refused  a  specific  performance  solely  because 
it  was  a  hard  bargain,  but  at  the  same  time  refused  to  decree  a  recision.  In 
Savile  v.  Savile,  1  P.  Wms.  745  ;  5  Vin.  Abr.  516,  pi.  25,  a  person,  during  the 
South  Sea  mania,  contracted  to  buy  a  house  for  10,500/,  paying  a  deposit  of  1,000/. 
Lord  Ch.  Macclesfield  refused  to  enforce  the  contract  ag-ainst  the  vendee  on  his 
forfeiting  the  deposit,  on  the  ground  that  the  whole  nation  was  at  the  time  in  a 
condition  of  financial  excitement,  almost  insanity,  and  the  values  put  upon  all 
propei'ty  were  imaginary — in  this  instance  as  well  as  in  others. 

(2)  See  Seymour  v.  DeLancey,  6  Johns.  Ch.  222,  224,  225,  in  which  Chancellor 
Kent,  after  a  very  elaborate  and  exhaustive  review  of  all  the  then  existing- 
authorities,  English  and  American,  including  those  opposed  to  his  conclusion, 
held  that  mere  inadecpiacy  of  price  would  be  a  defense,  since  it  i-ondered  the  con- 
h*act  unreasonable,  unecpial,  and  hai-d.  His  deci'ee  was  reversed  by  a  bai-e 
majority  of  the  coui-t  of  erroi-a,  in  Seymour  r.  DeLancey,  3  Cow.  445,  notwith- 
standing a  most  able  opinion,  concui-i-ed  in  liy  all  the  supreme  court  judges,  whit-h 
maintained  Chancellor  Kent's  views.  See,  also,  Clitherall  v.  Ogilvie.  1  Dessans. 
Eq.  257;  Gasque  v.  Small,  2  Strobh.  Eq.  72;  Clements  r.  Reid.  0  Sm.  & 
Mar.  535. 

283      - 


INADEQUACY  OF  THE   CONSIDERATION.  273 

same  rule.(l)  Where  a  sale  is  made  at  a  public  auction,  conducted  in 
a  fair  ana  oi)en  maimer,  with  opportunity  for  a  real  competition,  the 
rule  is  even  more  stringent ;  for  in  such  case  fraud  cannot  be  inferred 
from  any  inadequacy  in  the  price,  without  other  circumstances  show- 
ing bad  faith. (2)     The   formula,  that  the  inadequacy  "  must  be  so 

(1)  Coles  V.  Trecothiek,  9  Ves.  246,  per  Loi'd  Eldon  :  •'  Unless  the  inadequacy  of 
price  is  such  as  shocks  the  conscience  and  amounts,  in  itself,  to  conclusive  and  deci- 
sive evidence  of  fraud  in  the  transaction,  it  is  not  itself  a  sufficient  ground  for  refus- 
ing a  specitic  pei-forniance."  Stilwell  v.  Wilkins,  Jac.  282,  per  Loi-d  Eldon  ;  White 
V.  Damon,  7  Ves.  30,  per  Lord  Eldon  ;  Underhill  v.  Horwood,  10  Ves.  209,  per  Lord 
Eldon  ;  Burrowes  v.  Lock,  10  Ves.  470,  per  Sir  Wm.  Grant  ;  Lowther  v.  Lowther, 
13  Ves.  103,  per  Lord  Erskinb  ;  CoUier  v.  Brown,  1  Cox,  4*^8 ;  Bower  v.  Cooper,  2 
Hare,  408  ;  Borell  v.  Dann,  2  Hare,  450  ;  Griffith  v.  Spratley,  2  Bro.  C.  C.  179  ;  1 
Cox,  383  ;  Stephens  v.  Hotham,  1  K.  &  J.  571  ;  Abbott  v.  Sworder,  4  DeG.  &  Sm. 
448.  Land  was  bought  for  5,O00Z,  which  V.  C.  Knight  Bruce  held  to  be  worth 
only  3,500Z ;  but  he  and  Lord  St.  Leonards  held  that  this  excess  of  price  was  no 
objection  to  decreeing  a  specitic  performance  at  the  suit  of  the  vendor.  American 
cases  hold  the  same  rule.  Seymour  v.  DeLancey,  3  Cow.  445  ;  Hale  v.  Wilkinson, 
21  Gratt.  75,  decided  very  recently  in  accordance  with  this  doctrine ;  Garnett  v. 
Macon,  2  Brock.  185  ;  Rodman  v.  Zilley,  Saxton,  320  ;  White  v.  Thompson,  1  Dev. 
&  Bat.  Eq.  493  ;  Fripp  v.  Fripp,  Rice  Eq.  84  ;  Bean  v.  Valee,  2  Mo.  126  ;  Lee 
V.  Kirby,  104  Mass.  420;  Booten  v.  Scheffer.  21  Gratt.  474  ;  Curlin  v.  Hendricks, 
35  Tex.  225  ;  Western  R.  R.  v.  Babcock,  6  Mete.  346 ;  Black  v.  Cord,  2  Har.  &  G. 
100  ;  Burtch  v.  Hogge,  Harring.  Ch.  31  ;  Crocker  v.  Young,  Rice  Eq.  30  ;  Sarter 
V.  Gordon,  2  Hill  Ch.  121  ;  Harrison  v.  Town,  17  Mo.  237  ;  Cathcart  v.  Robinson, 
5  Peters,  263 ;  [Shaddle  v.  Disborough,  30  N.  J.  Eci.  370  (exchange  of  land) ; 
"White  V.  McGannon,  29  Gratt,  511  (excessive  price) ;  Stearns  v.  Beckham,  31 
Gratt,  382 ;  Smith  v.  Henkel,  81  Va.  524  ;  Ready  v.  Noakes,  29  N.  J.  Eq.  497  ; 
Cleere  v.  Cleere,  82  Ala.  581  ;  Conaway  v.  Sweeney,  23  W.  Va.  643.]  In  Seymour 
V.  Delancey,  3  Cow.  445,  the  opinion  of  the  senator,  concurred  in  by  the  majority 
said  :  "  It  is  not  to  be  denied  that  it  is  the  settled  doctrine  of  the  court  of  chancery, 
that  it  will  not  carry  into  effect,  specifically,  a  contract  when  the  inadequacy  of 
the  price  amounts  to  conclusive  evidence  of  fraud."  In  Cathcart  v.  Robinson,  5 
Pet.  263,  the  United  States  supreme  court  said :  "  Excess  of  price  over  value, 
though  considerable,  if  the  contract  be  free  from  imposition,  is  not,  in  itself  suf- 
ficient toqirevent  a  decree  for  specific  performance."  In  Westervelt  v.  Matheson, 
1  Hoff.  Ch  37,  land  was  purchased  for  !{i2,900,  and  its  highest  value  being  assumed 
to  be  .$3,500,  the  court  held  that  the  inadequacy  was  not  sufficient  to  infer  any 
fraud.  In  Viele  v.  Troy  &  Boston  R.  R.,  21  Barb.  381,  the  rule  was  stated,  that 
in  a  suit  for  a  specific  performance,  a  court  of  e(|uity  will  not  inquire  into  the 
adequacy  of  the  consideration,  unless  the  inadequacy  is  so  great  as  to  raise  a 
conclusive  presumption  of  fi-aud. 

(2)  White  V.  Damon,  7  Ves.  30,  per  Lord  Eldon,  who  was  of  opinion  that  a  sale 
at  auction  could  not  be  impeached  for  mere  inadequacy  of  price.  Borell  v.  Dann, 
2  Hare,  450,  per  Wigram,  V.  C.  :  "  Fraud  in  the  purchase  is  of  the  essence  of  the 
objection  to  the  contract  on  the  ground  of  inadequacy.  The  only  exception  to  the 
rule  for  decreeing  the  specific  performance  of  an  unexecuted  contract,  on  the 
ground  of  inadequacy  of  consideration,  is  that  it  is  so  gross  that,  of  itself,  it  proves 
fraud  or  imposition  on  the  part  of  the  purchaser.  The  case,  howevei",  must  be 
strong  indeed  in  which  a  court  of  justice  shall  say  that  a  purchaser  at  public 
auction,  between  whom  and  the  vendoi-  there  has  been  no  previous  communication 
affecting  the  faii'uess  of  the  sale,  is  chargable  with  fraud  or  imposition  only 
because  his  bidding  did  not  greatly  exceed  the  amount  of  the  vendor's  bidding.'* 

284 


274  SPECIFIC    I'KliFOIiMAM  E    OF   COXTliACTS. 

great  as  to  be  of  itself  conclusive  evidence  of  f rami,'  was  first  used  at  a 
time  when  courts  wore  in  the  habit  of  regarding'-  fraud  as  a  conchision 
of  law,  established  by  lueaus  of  legal  presumptions,  and  it  has  been, 
like  so  many  other  expressions,  unthinkingly  and  carelessly  repeated 
by  case  after  case,  without  any  notice  of  the  complete  revolution 
which  has  taken  place  in  the  theory  of  ^'raud.  As  fraud  is  now 
regarded  as  a  fact,  and  its  Existence  is  ascertained,  like  that  of  any 
other  fact,  by  comparing  and  weighing  the  evidentiaiy  matter,  it  is 
plain  that  the  phrase  "  conclusive  evidence  of  fraud  "  is,  from  the  very 
nature  of  the  case,  an  absurdity  and  impossibility  ;  what  would  be 
abinidantly  conclusive  to  one  judge  or  jury  will  come  far  short  of  con- 
vincing another  judge  or  juiy.  The  phrase,  and  the  thought  which 
it  contains,  belongs  alone  to  a  system  in  which  fraud  is  always  the 
result  of  legal  presumptions.  Inadequacy  is  evidence,  and  the  only 
rule  which  can  possibly  be  laid  down  is,  that  it  must  be,  to  the  judg- 
ment of  the  triers,  satisfactory  evidence  of  the  fraud. (1)  The  rule 
thus  finally  settled  by  the  cases,  is  plainly  founded  upon  motives  of 
convenience  and  not  upon  the  analogies  of  principle.  Thoretically 
considered,  inadequacy  in  the  price,  or  of  subject-matter,  is  a  species 
of  inequality  and  unfairness,  and  may  be  an  instance  of  hardship  and 
oppression.  That  it  is  not  governed  by  the  general  rules  applicable 
to  these  incidents  of  a  contract,  is  due  entirely  to  the  great  difficulty 
of  deciding,  in  each  particular  controversy,  upon  the  numerous  and 
different  considerations  and  motives  which  enter  into  and  aflect  the 
question.     Rather  than  meet  this  difficulty,  which  necessarily  arises 

See,  also,  Ayers  v.  Baum^arten,  1.5  111.  444 ;  [Ready  v.  Nokes,  29  N.  J.  Eq.  407.] 
An  auction  sale  will  be  rescinded,  and  a  fortioi-i  a  specific  performance  will  he 
refused,  on  proof  of  actual  fraud  in  conducting  it,  or  that  the  buyer  controlled  it. 
Byers  v.  Surget,  19  How.  (U.  S.)  309. 

(1)  That  is,  the  judge  or  jury  must,  from  the  fact  of  inadequacy,  the  extent  of 
it,  be  convinced  that  the  party  was  actually  guilty  of  a  fraudulent  purpose  or 
intent  in  making  the  contract.  I  (io  not  mean,  of  course,  that  judges  and  juries 
are  under  no  circumstances  any  longer  aided  by  legal  presumptions  in  de(;idiug 
upon  the  existence  of  fraud.  These  circumstances,  however,  and  the  cases  where 
presumptions  are  used,  have  been  very  much  narrowed  ;  and  the  issue  of  fraud, 
or  no  fraud,  is  generally  determined  in  the  same  manner  as  any  other  issue  of 
fact.  This  is  certainly  so  in  the  case  mentioned  in  the  text.  In  oi-der  that  inade- 
quacy should  be  "  conclusive  evidence  "  of  fraud,  the  amount  of  it  must  be  fixed 
by  some  universal  standard  or  critei-ion,  and  there  is  no  pretense  that  this  has 
ever  been  done.  The  jiroof  of  inadequacy  is  submitted  to  the  jury  or  court  and 
is  treated  like  any  other  evidence.  Fraud  is  not  inferred  from  it  by  any  pre- 
sumi)tion — for  it  is  now  admitted  by  all  accurate  thinkers  that  the  expression 
"  presumption  of  fact "  is  very  misleading — and  that  it  means  nothing  but  the^ 
argument! ve  process  by  which,  from  the  existence  of  one  fact,  the  human  judg- 
ment reaches  the  conclusion  that  another  fact  also  exists. 

28r>  ' 


INADEQUACY  OF  THE   CONSIDERATION.  275 

from  the  treatment  of  inadequacy  merely  as  a  hardship,  the  courts 
have  preferred  to  regard  it  as  evidence  of  fraud.  It  may  well  be 
doubted,  however,  whether  the  difficulty  has  been  at  all  lessened  by 
the  adoption  of  this  method. (1) 

Sec.  195.  As  inadequacy  is  not  a  hardship  or  an  unfairness 
merely,  but  is  only  objectionable  so  far  as  it  is  satisfactory  evidence 
of  fraud,  and  as  fraud  being  a  mental  condition  of  a  party  must 
exist,  if  at  all,  at  the  very  inception  of  the  agreement,  it  follows  that 
the  time  to  which  the  question  of  adequacy  or  inadequacy  must  be 
referred  for  decision,  is  always  that  of  concluding  the  contract.  If 
fraud  can  be  fatal  to  a  contract,  it  must  necessarily  have  affected  the 
transaction  at  the  commencement.  If,  therefore,  there  was  no  inade- 
quacy either  in  the  price  or  in  the  subject-matter  at  the  formation  of 
the  contract,  none  can  arise  from  subsequent  events  or  change  of  cir- 
cumstances.(2)    There  is  one  exception  to  the  general  rule  concerning 

(1)  In  some  systems  of  jurisprudence  an  arbitrary  rule  is  adopted  which 
furnishes  a  fixed  standard  by  which  to  determine  all  individual  cases  of  inade- 
quacy. In  the  Roman  law  this  standard  was  one-half  the  real  value  of  the  sub- 
ject-matter when  immovable  property  ;  if  the  price  agreed  was  less  than  one-half 
the  real  value,  the  seller  could  compel  the  buyer  to  elect  either  to  rescind,  restore 
the  thing,  and  take  back  the  price,  or  to  affirm  and  make  up  the  deficiency.  Code 
Lib.  iv,  tit.  44,  2.  A  like  method  forms  part  of  the  French  law.  Such  rules, 
however,  are  plainly  contrary  to  the  entire  spirit  of  our  law,  and  to  the  judicial 
processes  by  which  that  law  is  administered. 

(2)  As  for  example,  in  a  contract  of  which  the  consideration  is  wholly  or  partly 
a,n  annuity  to  a  certain  person,  to  be  jiaid  during  his  life,  and  he  dies  perhaps 
aefoi-e  even  the  first  payment,  this  does  not  render  the  consideration  inadequate. 
Mortimer  v.  Capper,  1  Bro.  C.  C.  156.  The  same  may  be  said  of  contracts  of  life 
insui'ance,  when  the  assured  dies,  perhaps  after  the  first  payment  of  premium. 
These  cases,  however,  are  not  fair  illustrations,  since  in  all  such  aleatory  con- 
tracts, the  whole  agreement  is  expressly  based  upon  the  uncertainty  in  the  hap- 
pening of  a  specified  event,  the  parties  contracting  intentionally  with  respect  to 
such  uncertainty,  and  the  risk  which  it  occasions.  If  the  happening  of  the  event 
sooner  than  was  hoped,  could  invalidate  such  agreements,  this  would  be  tanta- 
mount to  destroying  the  whole  efficacy  of  such  agreements.  Batty  v.  Lloyd,  1 
Vern.  141  ;  Hale  v.  Wilkinson,  21  Gratt.  75  ;  Lee  v.  Kirby,  104  Mass.  420.  In 
the  old  case  of  Savile  v.  Savile,  1  P.  Wms  745,  the  consideration  was  held 
inadequate,  because  the  values  subsequently  depreciated,  but  the  doctrine  of 
his  case  has  long  been  overruled  ;  but  see  "Willard  v.  Tayloe,  8  Wall.  557,  which 
was  really  a  case  of  price  becoming  inadequate  by  means  of  subsequent  events. 
If,  however,  the  plaintiff,  instead  of  being  ready  and  prompt  to  obtain  his 
i-emedy  as  soon  as  he  was  able,  should  unnecessarily  delay,  and  only  seek  to 
enforce  the  contract  when,  after  his  laches  or  change  of  circumstances  had  ren- 
dered the  price  inadequate,  a  specific  performance  might,  and  generally  would. 
be  refused.  Whitaker  v.  Bond,  63  N.  C.  290  ;  McCarty  v.  Kyle,  4  Coldw.  349 : 
Hudson  V.  King,  2  Heisk.  5(51  ;  Booten  v.  ScheflFer,  21  Gratt.  474. 

286 


276  SPRCIFIC   PERFOmiASCE   OF  CONTRACTS. 

inadequacy — namely,  contracts  for  the  sale  of  expectancies  and  rever- 
sionary estates  by  heirs,  etc.,  which,  as  has  already  been  stated, 
will  never  be  enforced  against  the  vendor  unless  the  price  is  clearly 
shown  to  be  fully  adequate,  and  in  which  the  burden  is  upon  the 
purchaser  of  proving  such  adequacy.  (1) 

Coupled  -with  other  facts. 

JSkc.  19(3.  Whenever  the  inadequacy  in  the  price  or  in  the  subject- 
matter  does  not  stand  alone  in  the  transaction,  pure  and  simple, 
but  is  accompanied  by  other  facts  or  conditions,  or  events,  showing 
bad  faith,  such  as  acts  of  fraud,  misrepresentations,  concealments 
of  the  true  value,  or  of  other  material  features,  ignorance,  weak- 
ness of  mind,  undue  advantage,  oppression,  and  the  like,  this 
•combination  of  objectionable  and  inadequate  incidents  may,  and 
if  clearly  established  by  the  proof,  will,  induce  a  court  to  deny 
the  remedy  of  specific  performance ;  and  may  even  furnish  a  suf- 
ficient ground  for  the  affirmative  relief  of  recision.  In  all  such 
cases,  however,  the  real  gravamen  of  the  objection,  the  determin- 
ing reason  for  refusing  to  execute  the  agreement  on  the  one  hand 
and  for  setting  it  aside  on  the  other,  is  the  fraud  of  the  party  who 
has  used  the  wrongful  means,  and  the  inadequacy  is  only  material 
with  the  other  party,  as  evidence  more  or  less  cogent  of  such  fraud. (2) 

(1)  Playford  v.  Playford,  4  Hare,  546.  See  ante,  §  191  ;  Story  Eq.  Jur.  §  336 
and  notes. 

(2)  Deane  v.  Rastron,  1  Anst.  64,  and  Fish  v.  Leser,  69  111.  394  (conceal- 
ment of  the  real  value) ;  Young-  v.  Clarke,  Prec.  Ch.  538 ;  Lewis  v.  Lord 
Lechmere,  10  Mod.  503,  ami  Pish  v.  Leser  (ig-norance)  ;  Blackwelder  v.  Loveless, 
21  Ala.  371  (undue  advantage  or  oppression).  In  Coekell  v.  Taylor,  15  Beav.  103, 
115,  the  plaintiff,  who  was  illiterate  and  poor,  was  very  anxious  to  make  a  loan, 
in  order  to  be  able  to  prosecute  a  claim  to  some  very  valuable  property  in  the 
<:om"t  of  chancery,  and  the  lender  only  granted  the  loan  on  condition  that  the 
jilaintifF  should  make  the  contract  in  suit,  which  was  an  agreement  to  pui'chase 
land  for  a  price  ten  times  greater  than  its  real  value.  The  contract  w-as  set  aside 
by  Sir  J.  Romilly,  M.  R.,  who  said:  "Coupled  with  such  circumstances,  the 
evidence  of  an  over-pj-ice  is  of  great  weight,  and  if  the  case  had  stood  here  I 
should  have  been  of  opinion  that  this  transaction  was  one  which  coidd  not  stand." 
See,  also.  Powers  v.  Hale,  5  Fost.  (N.  H.)  145;  Howard  v.  Edgell,  17  Vt.  9; 
Osgood  •?).  Franklin,  2  Johns.  Ch.  24 ;  Modisett  v.  Johnson,  2  Blackf.  431 ; 
McCormick  v.  Malin,  5  Blackf.  509 ;  Brooke  v.  Berry,  2  Gill.  83 ;  Gaaque 
V.  8mall,  2  Strobh.  Eq.  72 ;  Cabeen  v  Gordon,  1  Hill  I':q.  51  ;  Bunch  v. 
Hurst,  3  Dessau.  Eq  273 ;  Harrison  v.  Town,  17  Miss.  2  J7  ;  Cathcart  v  Robin- 
son, 5  Pet.  2G3 ;  Benton  v.  Shreeve,  4  Ind  66 ;  Byers  v  Surget,  ]  0  How 
(U.  S.)  303;  [Conaway  v  Sweeney,  23  W.  Va.  643.]  In  Clitherall  v  Ogilvie.  1 
Dessau.  Ec^.  257,  a  contract  between  a  quite  young  and  entii-oly  inexi)ericnced 
man  and  a  mature  person,  was  refused  performance ;  and  in  Graham  w. 
Pancoast,  6  Casey,  89,  the  remedy  was  denied  on  account  of  the  age  of  a 
party  lu  Henderson  v.  Hays,  2  Watts,  148,  151,  the  defendant's  mind  was 
-weakened   by   habitual  drink,  and   the   court  refused  to  enforce  his  contract 

287 


INADEQUACY   OF  THE    COXSIDERA'lION.  277 

The  nominal  character  of  the  consideration,  or  the  inadequacy  of  the 
price  in  any  respect,  may  also,  in  connection  with  other  facts,  tend 
to  show  that  the  transfer  was  not  a  sale  but  a  gift,  and  thus  prevent 
a  specific  performance,  since  equity  does  not  enforce  a  gift  of  real 
estate  unless  the  donee  has  executed  it  on  his  part  by  taking  posses- 
sion aiui  making  improvements. (1) 

8ec.  197.  When  the  inadequacy  appears  in  a  contract  between  a 
parent  and  child,  or  between  other  parties  so  related,  that  the  "  good ' 
consideration  of  love  and  affection  would  be  added  to  the  "  valuable  '* 
consideration,  this  circumstance  is  not,  according  to  some  decisions, 
to  be  regarded  as  affecting  the  right  to  a  specific  performance ;  all 
suspicion  or  inference  of  fraud  or  hardship  is  removed  by  the  fact  of 
the  relationship. (2)  It  is  certainly  curious  that  this  \-ery  circumstance 
has  seemed  to  other  courts  to  furnish  a  ground  for  grave  suspicion, 
and  to  raise  a  presumption  against  the  good  faith  of  the  transaction. 
It  has  thus  been  held  that  inadequacy  of  consideration  in  a  contract 
of  sale  between  near  relatives,  especially  where  one  is  in  a  position 
of  natural  superiority  and  command  over  the  other — as  a  father  and 
son — raise  a  presumption  of  undue  influence,  which,  in  connection 
with  the  inadequacy,  may  defeat  a  specific  performance,  or  even 
avoid  the  agreement.(3) 

for  the  sale  of  his  farm,  since  the  price  would  in  all  prohahility  he  soon  squan- 
dered in  drink.  Campbell  ?>.  Spencer,  2  Binney,  133,  was  a  somewhat  similar  case» 
with  a  like  decision.  [For  further  instances  of  inadequacy,  coupled  with  circum- 
stances of  oppression  or  ignorance,  see  Rau  v.  Von  Ledlitz,  132  Mass.  164  ;  Swint 
V.  Carr,  76  Ga.  322  ;  Cleere  v.  Cleere,  82  Ala.  581 ;  Goug-h  v.  Bench,  6  Ont.  R.  699.1 

(1)  Callaghan  v.  Callaghan,  8  CI.  &  Fin.  374.  See,  as  to  the  specific  i^erform- 
anco  of  gifts,  ante,  §  130. 

(2)  Shepherd  v.  Bevin,  9  Gill,  32,  39  ;  4  Md.  Ch.  133  ;  Haines  i-.  Haines,  6  Md. 
435 ;  White  v.  Thompson,  1  Dev.  &  Bat.  Etp  493  ;  Fripp  v.  Fripp,  1  Rice  Eq.  84. 
In  Shepherd -y.  Bevin,  this  view  was  stated  by  Frick,  J.,  as  follows:  "The 
agreement  is  not  between  strangers,  but  the  parties  are  mother  and  son,  in  the 
closest  relation  of  life.  The  contract  has  the  meritorious  consideration  of  love 
and  affection,  suj^eradded  to  the  valuable  consideration  which  passed  between 
them.  Could  the  appellant  reasonably  have  declined  the  proposition  to  release 
the  amount  of  his  claim  against  the  mother,  when  coming  fi-om  herself  ?  And  as 
her  own  proposition  to  her  child,  of  what  weight  is  the  objection  on  the  scoi-e  of 
the  inadequacy  of  the  price  proposed  and  accepted  by  herself  ?  No  small  part 
of  the  consideration,  besides,  acting  upon  her  motives,  was  the  desire  to  gratify 
the  last  expressed  wishes  of  hei-  deceased  husband.  And  in  an  agreement  made 
by  a  parent  with  a  child,  a  slight  consideration  will  be  sufficient  to  support  it. 
4  Har.  &  McH.  258.  The  case  of  Hays  7).  Hollis,  8  Gill,  357,  decided  at  the  pre- 
sent term  of  this  court,  is,  upon  this  point,  precisely  para.Uel,  and  obviates  all 
further  remarks  upon  the  objection  to  the  adequacy  of  the  consideration." 

(3)  "Whelan  v.  Whelan,  3  Cow.  537.  Such  a  contract  has  also  been  regarded  as 
coming  within  the  principle  established  with  respect  to  voluntary  agreements,  and 
as,  for  that  reason,  not  enforceable  in  equity.  Callaghan  i'.  Callaghan,  8  CI.  &  Fin» 
374. 

288 


278  SPECIFIC  PERFORMANCK   OF  CONTRACTS. 

SECTION  XL 

The  title  must  he  free  from  reasonable  douibt. 

Section  198.  There  reniains  one  more  feature  to  be  considered  of 
those  which,  in  the  ordinary  hmguage  of  the  hooks,  nieroly  infiuence 
the  discretion  of  the  court,  but  do  not  affect  tlie  substance  or  legal 
efficacy  of  the  agreement.  It  is  the  rule  that  iiv  suits  by  a  vendor 
the  purchaser  will  not  be  forced  to  complete  the  contract  unless  the 
title  is  free  from  any  reasonable  doubt.  This  requirement  should  be 
carefully  distinguished  from  the  objection  that,  as  a  matter  of  fact 
established  by  the  proofs,  the  vendor  has  no  title  at  all,  or  has  only  a 
partial  or  a  defective  one — an  objection  which  maybe  raised  by  either 
of  the  parties,  and  which,  if  well  founded,  will,  as  a  matter  of  law, 
either  totally  defeat  a  specific  performance,  or  render  its  euforceraent 
partial,  and,  perhaps,  accompanied  by  a  compensation.  The  rule  now 
to  be  discussed  differs  in  every  respect  from  this.  It  assumes  that 
the  question  whether  the  vendor's  title  is  valid  or  imperfect,  is  not 
definitely  passed  upon  by  the  court.  If,  however,  there  arises,  either 
on  the  face  of  the  pleadings,  or  from  the  examination  made  during 
the  progress  of  the  suit,  a  reasonable  doubt  concerning  the  title  to  be 
made  and  given  by  the  vendor,  the  court,  without  deciding  the  ques- 
tion between  the  parties  then  before  it — which  decision  might  jiot  be 
binding  upon  third  persons,  and,  therefore,  might  not  prevent  the 
same  question  from  being  subsequently  raised  by  other  claimants  of 
the  land — regards  the  existence  of  this  doubt  as  a  sufficient  reasou  for 
not  compelling  the  purchaser  to  carry  out  the  agreement  and  accept 
a  conveyance. (1)     In  treating  of  the  subject  I  shall,  after  some  pre- 

(1)  Pyrke  v.  Wadding'ham,  10  Hare,  1  ;  Lucas  v.  James,  7  Hare,  418,  425  ;  Rad- 
ford V.  Willis,  L.  R.  7  Ch.  7 ;  Alexander  v.  Mills,  L.  R.  6  Ch.  124  ;  Beiok^y  v.  Car- 
ter, L.  R.  4  Ch.  230  ;  Collier  v.  McBean,  L.  R.  1  Ch.  81  ;  Mailings  v.  Trinder,  L. 
R.  10  Eq.  449 ;  Cook  v.  Dawson,  3  DeG.  F.  &  J.  127  ;  29  Beav.  123 ;  Rede  v. 
Oakes,  4  DeG.  J.  &  S.  505  ;  32  Beav.  555 ;  Rogers  v.  Waterhouse,  4  Drew.  329  ; 
Bull  V.  Hutchens,  32  Beav.  615  ;  CoUard  v.  Sampson,  16  Beav.  543  ;  4  DeG.  M.  & 
G.  224  ;  Freer  v.  Hes.se,  4  DeG.  M.  &  G.  495  ;  Falkner  v.  Eciiiitable,  etc.,  Society, 
4  Drew.  352  ;  Sheppard  v.  Doolan,  3  D.  &  War.  1,  G ;  Seymour  v.  Dtdancey,  1  Hop. 
496;  Bates  u.  Delevan,  5  Paige,  299;  Ovvings -y.  Baldwin,  8  Gill,  337;  Butler  v. 
O'Hear,  1  Dessau.  Eq.  382;  Fitzpatrick  v.  Featherstone,  3  A.la.  40;  Morgan  i\ 
Morgan,  2  Wheat.  290;  Longworth  v.  Taylor,  1  McLean,  395;  Watts  ;•  W.id.lle, 
1  McLean,  200  ;  Jeffries  iv  Jeffries,  117  Mass.  184  ;  Taylor  v.  Williams.  4.")  Mo.  80  , 
Powell  V.  Conant,  33  Mich,  396  ;  Pratt  v.  Eby,  67  Pa.  St.  396  ;  Walsh  c.  Hall,  66 
N.  C.  233  ;  Vreeland  v.  Blauvelt,   23  N.  J.  Etp  483  ;  Allen  v.  Atkinson,  21  Mich 

289 


THE   TITLE   MUST  BE  FREE  FROM  DOUBT.  279 

liminary  matter,  discuss  :  1,  the  cases  in  wliicli  the  title  may  be  too 
doubtful ;  and  2,  the  nature  and  extent  of  the  doubt  itself. 

Sec.  199.  In  the  earlier  cases  before  the  English  court  of  chancery, 
nothing  was  known  of  doubtful  titles  as  a  special  class  ;  if  objection 
was  raised  in  any  suit,  the  court  passed  definitely  upon  the  validity 
of  the  title,  granting  or  refusing  the  relief  according  to  conclusion 
thus  reached.  (1)  The  notion  that  a  specific  performance  should  be 
denied  when  the  vendor's  title  is  merely  doubtful,  without  it  being 
necessary  for  the  court  to  pronounce  it  bad,  was  first  introduced  by 
Sir  Joseph  Jekyll  and  Lord  Thurlow,  and  has  since  become  the 
acknowledged  doctrine  both  in  England  and  in  the  United  States. (2) 
As  will  be  seen,  however,  in  the  following  paragraphs,  the  very  latest 
English  decisions  in  applying  the  doctrine,  exhibit  a  strong  tendency 
towards  the  early  practice. 

Sec.  200.  The  doubt  which  can  arise  concerning  any  title,  must,  of 
necessity,  relate  either  to  the  law  or  to  the  facts  of  the  case.  If  the 
.aw  is  the  object  of  the  doubt,  it  may  either  be  the  law  of  the  land 
proper — the  municipal  law ;  (3)  or  it  may  be  confined  to  the  construc- 
tion of  some  deeds,  wills,  and  oAer  writings  which  constitute  the 
chain  of  title. (4)  The  latest  English  cases  seem  inclined  to  confine 
a  doubt  in  the  law  to  the  latter  of  these  two  subdivisions,  and  to  hold 
that  all  doubts  arising  solely  from  the  general  law  of  the  land  must 
be  solved  by  judicial  decision. (5)  If  the  doubt  concerns  the  facts, 
these  facts  may  either  be  elements  of  the  title,  as  deaths,  births,  and 
the  like,  or  they  be  outside  of  or  collateral  to  the  title. (6)  In  either 
of  the  two  latter  subdivisions,  the  facts  may  be  susceptible  of  proof, 
and  the  doubt  itself  result  from  a  want  of  satisfactory  proof;  (7)  or 

351 ;  Dobbs  v.  Norcross,  24  N.  J.  Eq.  327  ;  Lesley  v.  Morris,  9  Phila.  110  ;  Kosten- 
bader  v.  Spotts,  80  Pa.  St.  430  ;  Sturtevant  v.  Jaques,  14  Allen,  523  ;  Young  v. 
Rathbone,  1  C.  E  Green,  224.  [For  an  elaborate  digest  of  the  cases  on  this  sub- 
ject, see  note  to  Cornell  v.  Andrews,  35  N.  J.  Eq.  7.  See,  also,  Palmer  v.  Morri- 
son, 104  N.  Y.  132  ;  Dingley  v.  Bow,  130  N.  Y.  (507  ;  Townshend  v  Goodfellow,  40 
Minn.  312 ;  Close  v.  Stuyvesant,  132  III.  607  ;  List  v  Rodney,  83  Pa.  St.  483  ; 
Mitchell  V.  Steinmetz,  97  Pa.  St  251 ;  Emmert  v.  Stouffer,  64  Md.  544 ;  Univer- 
salist  So.  •JJ.  Dugan,  65  Md.  460  ;  Hull  v.  Glover,  126  111.  122  ;  Richmond  v.  Koenig, 
43  Minn.  480 ;  Williams  v.  Schembri,  44  Minn.  250 ;  Irvinof  v.  Campbell,  121  N. 
Y  353;  Kilpatrick  v.  Barron,  125  N.  Y.  751  ;  Vought  v.  Williams,  120  N.  Y.  253  ; 
Toole  V  Toole,  112  N.  Y.  335  ;  Phillips  v.  Day,  82  Cal.  24  ] 

(1)  .«eel  Bro.  C.  C.  76,  n. 

(2)  Marlow  v.  Smith,  2  P.  Wms.  198,  per  Sir  J.  Jekyll  ;  Shapland  v.  Smith,  1 
Bro  C.  C.  75,  per  Lord  Tiitjrlow.  See,  also,  Sloper  v  Fish,  2  V.  &  B.  149,  per 
Sir  W.M.  Grant  ;  Cooper  v.  Denne,  4  Bi-o  C.  C.  80 ;  1  Ves.  565  ;  Sheffield  v.  Lord 
Mulgrave,  2  Ves  526  ;  Roake  v.  Kidd,  5  Ves.  647 ;  Willcox  v.  Bellaers,  T.  &  R. 
491,  and  see  eases  in  last  note  but  one. 

(3)  Sloper  v.  Fish,  2  V.  &  B.  145 ;  Blosse  ■?'.  Lord  Clanmorris,  3  Bli.  62. 

(4)  Lincoln  v.  Arcedeckne,  1  Coll.  C.  C.  38  ;  Bristow  v  Wood,  1  Coll.  C.  C.480; 
Pyrke  v  Waddingham,  10  Hare,  1,  9,  per  Turner,  V.  C. 

(5)  See  post.  §  202. 

(6)  Cases  above  cited  in  last  note  but  one. 

(7)  Smith  a.   Death,  5  Mad.  371 ;  [Shriver  v.  Shriver,  86  N.  Y.  575,  584,  per 

FOLGER,  Ch.  J.] 

290 


280  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

they  may  be  such  as  are,  from  their  nature,  incapable  of  definite 
proof.(l)  It  is  very  plain  that  a  doubt  arising  from  certain  of  tliese 
sources  is  a  much  more  serious  objection,  and,  tliereforo,  nuich  more 
likely  to  prevail  than  a  doubt  arising  from  any  of  the  others.  For 
example,  a  doubt  concerning  the  construction  of  instruments  is  less 
easy  of  solution  than  one  depending  upon  a  rule  of  the  general  law  ; 
while  a  doubt  involving  matters  of  fact  incapable  of  positive  proof,  is 
much  more  prejudicial  to  a  title  than  one  caused  by  the  deficient 
evidence  of  facts  which  may  be  proved. 

Cases  in  -which  the  title  is  too  doubtful. 

Sec.  201.  I.  As  every  title  must,  to  a  very  great  extent, 
depend  upon  its  own  facts  and  circumstances,  it  is  plainly 
impossible  to  lay  down  any  general  proposition  as  a  test  by 
which  all  cases  of  a  sufficient  doubt  may  be  discriminated  and 
arranged.  The  most  that  can  be  done  is  to  describe  the  particular 
typical  cases  in  which  the  doubt  has  prevailed,  with  such  amount  of 
generalization  and  classification  as  can  be  gathered  from  the  discord- 
ant opinions  and  dicta  of  the  iudges.(2)  It  has  been  suggested  as  a 
universal  test,  in  England,  that  the  title  should  be  technically  "mar- 
ketable," so  that  if  the  title  offered  to  the  purchaser  is  not  a 
*'  marketable  "  one,  and  he  has  not  expressly  stipulated  to  accept  any- 
thing less,  it  should  not  be  forced  upon  him.(3)     But  a  marketable 

(1)  Lowes  V.  Lush,  14  Ves.  547. 

(2)  As  an  illustration  of  the  difficulty  and  of  the  judicial  endeavors  towards  a 
solution,  it  has  even  been  gi-avely  sugg-ested  as  the  test  of  a  controverted  title, 
that  the  judge  himself  who  is  deciding  the  cause  would  be  willing  to  lend  his 
money  upon  the  security  of  it ! !  In  Jervoise  v.  Duke  of  Northumberland,  1  J. 
&  W.  569,  Lord  Eldon  said :  "The  court  has  almost  gone  to  the  length  of  saying 
that  unless  it  is  so  confident  that,  if  it  had  £95,000  to  lay  out  on  such  an  occasion, 
it  would  not  hesitate  to  trust  its  o\vn  money  on  the  title,  it  would  not  compel  a 
purchaser  to  take  it."  See,  also,  Pyrke  v.  "Waddingham,  10  Hare,  9,  per  Tuhneb, 
V.  C;  Sheffield  v.  Lord  Mulgrave,  2  Ves.  526.  The  impracticability  and  even 
absurdity  of  this  test  are  ajiparent. 

(3)  Loi-d  Braybroke  v.  Inskip,  8  Ves.  428,  per  Lord  Eldon.  It  is  undoubtedly 
the  settled  rule  in  the  United  States,  that,  in  the  absence  of  any  stipulation  to  the 
contrary,  the  purchaser  is  entitled  to  have  "a  marketable  title,"  The  meaning 
of  this  term,  however,  is  somewhat  different,  as  used  by  our  courts,  from  the 
special  and  technical  sense  which  seems  to  be  given  to  it  in  England.  By  "a 
marketable  title  "  the  American  courts  evidently  understand  what  the  jilain  and 
ordinary  meaning  of  the  v>'ords  imi)lies,  a  title  which  would  render  the  propei'ty 
salaVile  at  any  time  in  the  market — salal)lc,  that  is,  without  any  imjiediment 
or  difficulty  connected  with  the  title  itself.  A  "  mai-ketable  title"  is  there- 
fore one  which  is  clear  and  good  on  the  record,  and  without  incumbi-ancc. 
Of  course,  particular  incumbrances,  such  as  mortgages,  judgments,  easements,  or 
dower,  may  be  expressly  provided  for  in  the  contract,  while  the  title  itself  is 
otherwise  clear  upon  the  record,  and  in  conformity  \vith  the  requii'ements  of  the 
rule.     That  thp  purchaser,  in  the  absence  of  stipulations  to  tlie  contrarv,  cannot 

291   v 


THE   TITLE   MUST  BE  FREE  FROM  DOUBT.  281 

title,  as  defined  by  one  of  the  ablest  English  equity  judges,  is  "  one 
which,  so  far  as  its  antecedents  are  concerned,  may,  at  all  times  and 
under  all  circumstances,  be  forced  on  an  unwilling  purchaser."(l)  The 
proposed  test  would,  therefore,  come  to  this:  "  a  purchaser  shall  not 
be  compelled  to  accept  a  title  unless  it  be  one  which  a  purchaser  can 
always  be  compelled  to  accept " — which,  as  a  practical  rule,  certainly 
does  not  make  the  matter  any  the  less  difficult.(2) 
When  two  judges  or  courts  differ  in  opinion  concerning  it. 

Sec.  202.  It  has  sometimes  happened  that  the  judge  before  whom 
a  case  was  pending,  entertained  an  opixiion,  even  quite  a  docided 
opinion,  in  favor  of  the  title,  and  yet,  because  an  opinion  unfavorable 
to  its  validity  has  been  expressed,  or  is  known  to  be  held  by  some 
other  person  of  authority,  or  person  whose  legal  knowledge  and  ability 
entitle  his  conclusions  upon  any  question  to  great  respect,  thiG  fact 

be  forced  to  accept  a  title  unless  it  is  mai-ketable,  see  the  following'  cases  among^ 
others :  Taylor  v.  Williams,  45  Mo.  80 ;  Powell  v.  Conant,  33  Mich.  396  ;  Pratt  v. 
Eby,  67  Pa.  St.  396  ;  Vreeland  v.  Blauvelt,  23  L.  J.  Eq.  483 ;  Allen  v.  Atkinson, 
21  Mich.  351;  Lesley  v.  Morris,  9  Phila.  110  ;  Swain  v.  Fidelity  Ins.  Co.,  54  Pa. 
St.  455 ;  Freetly  v.  Barnhart,  51  Pa.  St.  279  ;  Linkous  v.  Cooper,  2  W.  Va.  67  ; 
Littlefield  v  Tinseley,  26  Tex.  353  ;  [Shriver  v  Shriver,  86  N.  Y.  575,  per  Folgeb, 
Ch.  J.  ;  Oakey  v  Cook,  41  N  J  Eq  .350 ;  Mitchell  v  Steinmetz,  97  Pa  St  251 ; 
Logan  V.  Bull,  78  Ky.,  607  (title  by  adverse  possession  held  marketable) ,  Abrams 
V  Rhoner,  44  Hun,  507  (same);  and  see  Jones  v.  Falghum,  3  Tenn.  Ch  193; 
Chapman  v.  Lee,  5C  Ala.  616;  McLaren  v.  Irwin,  63  Ga.  275.  A  title  derived 
throug-h  a  mortgage  to  B..  president  of  [etc.]  Co.,  his  successors  and  assigns,  but 
without  words  of  inheritance,  he^d  not  marketable  Cornell  v.  Andrews,  35  N  J 
Eq.  7 ;  s.  c  ,  36  N.  J.  Eq.  321.]  From  the  simplicity  of  our  real  estate  law  and 
our  methods  of  conveyancing,  and  especially  fi-ora  our  system  of  registering, 
which  prevails  in  evei-y  State,  the  requirements  concerning  "doubtful  titles," 
which  have  been  found  necessary  in  England,  do  not  and  cannot  exist  in  the 
United  States.  It  would  be  no  exaggeration  to  say  that  it  is  almost  impossible 
for  a  case  to  arise  in  this  country  of  doubtful  title,  where  the  doubt  itself  shall 
depend  upon  some  rule  of  the  general  real  estate  law  as  yet  uncertain,  and  which 
a  decision  of  the  court  could  settle  and  determine  for  all  litigants,  and  all  other 
controversies  presenting  the  same  que3tion  of  law.  The  doubts  with  us  must, 
from  necessity,  be  those  involving  some  matter  of  jjure  fact,  or  those  turning  upon 
the  construction  of  some  instrument,  as  a  will  or  a  deed,  through  which  the  title 
is  deduced.  The  great  majority  of  cases  will  be  found,  I  think,  to  belong  to  the 
former  of  these  classes.  The  doubt  arises  from  some  matter  of  fact,  such  as  the 
existence  of  an  outstanding  incumbrance,  or  dower  light,  and  the  like.  In  either 
of  these  classes  of  doubtful  titles  it  is  plain — and  this  I'ule  is  conceded  by  the  Eng- 
lish courts — that  a  decision  in  a  suit  between  the  vendor  and  the  vendee  cannot 
settle  the  question  and  remove  the  doubt  finally.  For  this  reason  the  American 
courts,  in  case  of  a  doubtful  title,  cannot  adopt  the  recent  doctiine  of  the  English 
judges,  which  is  only  aj^plicable  to  cases  where  the  doubt  arises  from  an  unset- 
tled rule  of  the  general  law. 

(1)  Pyrke  v.  Waddingham,  10  Hare,  8,  per  Turner,  V.  C. 

(2)  Owing  to  the  practices  of  land  owners  and  the  enormously  comjilicated  con- 
dition of  titles  and  methods  of  conveyancing  in  England,  the  term  "marketattle 
title"  has  acquired  there  a  technical  meaning,  which  does  not  really  exist  in  this 
country.  It  would  appear  that  a  comparatively  few  titles  ai-e  strictly  "  market- 
able " — at  least,  of  those  which  come  before  the  court  of  chancery,  and  figure  in 
the  reported  decisions. 

292 


282  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

"has  been  held  to  throw  a  reasonable  doubt  upon  tlic  titlo,  and  to  be  a 
f!<nffi('ieiit  ground  for  denying  to  the  vendor  the  remedy  of  t-[iocific 
performance.(l)  This,  however,  cannot  be  said  to  be  a  rule,  and  it  is 
contrary  to  the  practice  and  tendency  of  the  latest  English  cases.(2) 
It  has,  however,  been  laid  down  as  a  definite  rule,  that  a  sutlicient 
•doubt  is  always  created  if  another  court  ha^  rendered  a  decision  hostile 
to  the  title,  although  the  court  before  wliicli  the  matter  is  then  pend- 
ing may  dissent  from  that  decision ;  the  rule  has  even  been  stated, 
and  there  is  judicial  authority  in  its  support,  that  if  a  lower  court  has 
pronounced  a  title  bad,  and  the  case  is  then  carried  to  an  appellate 
tribunal,  which  takes  a  different  view  and  holds  the  title  good,  this 
latter  opinion  will,  nevertheless,  not  be  acted  upon  ;  the  adverse  con- 
chision  of  the  inferior  court  will,  of  itself,  create  the  fatal  doubt. (3) 
This  rule  has  been  expressly  repudiated  in  England  by  the  latest 
cases,  and  the  more  reasonable  doctrine  has  been  there  established, 
that  the  decision  of  the  court  before  which  a  suit  is  pending  in  favor 
of  the  vendor's  title  shall  remove  every  doubt  which,  from  any  cause, 
might  have  before  existed,  and  shall,  so  far  as  this  objection  goes, 
render  a  specific  enforcement  of  the  contract  necessary.  (4)    The  adop- 

(1)  In  Price  t).  Strange,  6  Mad,  1.59,  104,  Sii-  John  Leach  expressed  a  deci<led 
opinion  in  favor  of  the  title  then  before  him,  and  still  denied  to  enforce  it  upon  the 
purchaser.  In  Pyrke  v.  Waddinghim,  10  Hare,  ^^  V.  C.  Turner  discussed  the 
whole  subject  in  a  most  exhaustive  manner,  gave  his  own  opinion  in  favor  of  the 
title,  and  refused  to  grant  a  specitic  performance. 

(2)  In  Hamilton  v.  Buckmaster,  L,  R.  3  E.j.  323,  per  Page  Wood,  V.  C,  the  title 
was  pronounced  good.  Mr.  Dart,  the  celebrated  i-eal  estate  lawyer,  and  one  of 
the  *'  conveyancing  counsel  "to  the  court,  had  given  an  opinion  to  the  vendee  that 
the  title  was  bad.  Held,  that  this  opinion,  from  such  a  counsel,  did  not  render 
the  title  doubtful  so  as  to  lead  the  court,  against  its  own  view  of  the  law,  to  refuse 
a  specific  periormance.  [iSee,  also,  Moser  v  Cochrane,  107  N.  Y.  35  ;  Murray  t>. 
Ellis,  112  Pa.  St.  485.] 

(3)  Rose  V.  Calland,  5  Ves.  186. 

(4)  Alexander  v.  Mills,  L.  R.  6  Ch.  124,  131,  per  Jamks,  L.  J.  :  "  He  (the  M.  R.) 
disposes  first  of  an  objection  which  has  been  pressed  upon  us,  as  follows  :  'I  do 
not  adopt  the  expression,  frequently  cited  to  me,  that  the  court  will  abstain  from 
compelling  a  defendant  to  attcepi;  a  title  where,  though  the  point  is  doubtful,  the 
court  is  of  opinion  that  the  objection  is  bad.'  We  do  not  say  that  there  may  not 
be  cases  in  which  a  question  of  law  may  be  considered  so  doubtful  that  a  court 
would  not,  on  its  own  view,  compel  a  purchsiser  to  take  a  title.  Still,  as  a  genei-al, 
almost  universal,  rule,  the  coui-t  is  bound  as  much  between  vendor  and  jmrchaser, 
as  in  any  other  case,  to  ascertain  and  determine,  as  it  best  may,  what  the  law  is, 
and  to  take  that  to  be  the  law  whi(;h  it  has  so  ascertained  and  determine<l.  The 
exceptions  to  this  will  jjrobably  be  found  to  consist,  not  in  pure  questions  of  legal 
principle,  but  in  cases  where  the  ditticulty  and  the  doubt  arise  in  ascertaining  the 
true  construction  and  legal  operation  of  some  ill-expressed  and  in!ii-titi(;ial  instru- 
ment. This  case  involves  a  question  of  general  law,  applicable  to  all  similar 
setllenieuts,  and  we  arc  bound  to  say,  one  way  or  the  other,  what  that  law  is  ; 
and  we  cannot,  in  isuch  a  case,  escape  from  that  duty  by  saying  that  the  deci- 
Biou  of  the  M.  R.,  in  taking  one  view,  makes  the  other  view,  if  held  by  us,  so 

293 


THE    TITLE  MUST  BR   FREE   FROM  DOUBT.  283 

tion  of  this  doctrine  does  not  destroy  all  the  effects  of  a  reasonable 
doubt,  since  it  still  leaves  open  all  the  cases  in  which  the  court  does 
not  or  will  not  pass  upon  the  question  of  title.  An  appellate  court 
may  think  that  a  doubt  inhering  in  the  case  has  been  so  much 
strengthened  by  an  adverse  decision  of  the  inferior  judge,  that  it  will 
not  definitely  pass  npon  the  title,  but  simply  refuse  to  force  it  upon 

doubtful  that  we  cannot  force  it  on  a  pui-t^haser.  The  contrajy  was  expressly  laid 
down  by  our  predecessors  in  the  case  of  ISeioley  v.  Carter,  L.  R.  4  Ch  230,  ad(jpt- 
in^  the  language  of  Lord  St.  Leonards  in  the  case  of  Shepard  v.  Doolan,  3  Dr. 
&  War.  1,  b,  there  cited."  In  Beioley  v.  Carter,  L.  R.  4  Ch  "J30,  the  general  doc- 
trine was  announced,  that  a  vendee  will  be  forced  to  take  a  title  which  appears 
to  the  appellate  court  to  be  good,  although  the  court  below  was  of  a  different 
•pinion — that  fact  not  creating  a  doubtful  title — per  Sblwyn,  L.  J.,  p.  236,  and 
GiFFARD,  L.  J.,  p.  240,  quoting  CoUier  v.  McBean,  L.  R.  1  Ch.  81,  and  Shepai-d 
V.  Doolan,  supra.  [See  Kelso  v.  Lorillard,  85  N.  Y.  177  ;  in  !■  airchild  ■v.  Marshall, 
42  Minn.  14,  it  was  held  that  a  title  which  had  previously  been  hell  good  by  a 
decision  of  the  supreme  court  could  not  be  considered  doubtful.]  Belli).  Holtby, 
L.  R.  15  Eq.  178,  holds,  per  Malins,  V  C,  that  whei'e  a  doubt  arises  upon  the 
validity  of  a  title,  the  decision  of  the  court  removes  the  doubt,  and  specific  per- 
formance will  be  enforced.  To  the  same  etiect,  see  Wrigley  v.  Sykes,  21  Beav. 
337  ;  MuUings  v.  Trinder,  L.  R.  10  Eq.  449,  per  Lord  Romilly,  M.  H.  ;  Radford  v. 
Willis,  L.  R.  7  Ch.  7.  This  rule,  as  established  in  England  ly;/  the  latest  authori- 
ties, has  not  been  followed  by  some,  at  least,  of  the  recent  American  cases.  Thus 
in  Pratt  t\  Ely,  67  Pa.  St.  396,  it  was  held  that  a  doubtful  title  cannot  be  made 
marketable,  and  thus  forced  upon  the  vendee,  by  a  decision  in  its  favor  in  an 
action  between  himself  and  the  vendor ;  and  in  Vreeland  v.  Blauvelt,  -3  N.  J. 
Eq.  483,  it  was  held,  that  if  there  is  such  a  doubt  concerning  the  title  as  would 
affect  its  marketable  value,  it  will  not  be  forced  on  the  purchaser,  although  the 
court  before  which  the  suit  for  a  specific  performance  is  pending  might  consider 
it  to  be  good.  [To  the  same  etfect,  see  Cornell  v.  Andrews,  C5  N.  J.  Eq  7.]  Which 
of  these  two  rules  is  to  be  preferred,  as  based  upon  principle,  cannot  be  deter- 
mined in  an  absolute  manner,  since  the  propriety  of  aiijilying  either  must  dejjend 
iipon  the  nature  and  origin  of  the  doubt.  If  the  doubt  results  from  a  ru!e  or 
doctrine  of  the  general  law  concerning  i-eal  property,  the  decision  of  the  court 
announcing  the  rule,  or  settling  the  docti-ine,  and  thus  clearing  up  the  doubt, 
will,  of  course,  be  binding  in  all  subsequent  cases,  whether  between  the  same  or 
other  parties  ;  for  it  is  not  to  be  supjiosed  that  the  coui-t  would  lay  down  one  rule 
of  law  for  one  set  of  parties,  and  a  different  rule  for  olher  jiarties.  The  reason- 
ing, therefore,  that  the  decision  of  the  court  in  the  suit  between  the  vendor  and 
vendee  would  not  be  binding  in  a  subsequent  case  between  the  vendee  and  other 
claimants  is  without  any  foundation,  where  that  decision  turns  upon  the  settle- 
ment of  a  legal  i-ule.  Undoubtedly  the  foi-mer  judgment  is  not  technically  bind- 
ing as  res  adjudicata,  but  the  law  once  formally  announced  is  the  law  for  all 
litigant  parties.  If,  however,  the  doubt  does  not  inhere  in  some  disiiuted  legal 
rule,  but  in  matters  of  fact  connected  with  the  deduction  of  title,  so  that  no 
doctrine  or  rule  of  law  is  established  by  the  decision,  then  it  is  clear  that  the 
decision  in  favor  of  the  tile  in  the  case  pending  between  the  vendor  and  vendee, 
cannot  be  of  any  avail  to  the  vendee  in  a  subsequent  action  brought  against  him- 
self by  other  claimants  of  the  land  ;  and,  therefore,  such  decision  would  not  put 
the  doubt  as  to  the  title  at  rest.  [Abbott  r.  James,  111  N.  Y  673.]  This  plain 
<listinction  between  the  two  species  of  doubts,  has,  I  think,  been  sometimes  over- 
lortked  by  the  courts  in  their  general  statements  of  the  rules  concerning  doubtful 
titles.  That  the  latest  English  i-ule  is  not  suited  to  the  vast  majority  of  cases  of 
doubtful  title  in  the  United  States,  since  they  involve  questions  of  fact  or  of  con- 
struction rather  than  those  of  the  general  law,  see  the  observations  in  a  note  under 
§  201,  ante.  \  -^ee  Chesman  v.  Cummings,  143  Mass.  65,  to  the  eflect  that  even 
when  the  doubt  is  one  concerning  matters  of  fact  or  of  construction,  if  all  the 
parties  in  interest  are  before  the  coui-t,  the  court  will  proceed  to  pass  upon  the 
question  of  title.  The  vendee  is  not  in  this  case  compelled  to  "buy  a  law  suit."] 
294 


284  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

the  purchaser. (1)  This  latest  doctrine  of  the  English  courts  is  not,  in 
my  opinion,  applicable  to  the  cases  of  doubtful  title  which  ordinarily 
arise  in  the  United  States. 

When  it  involves  future  litigation. 

Sec  203.  One  rule  belonging  to  this  branch  of  the  subject  is 
firmly  established  both  in  England  and  in  the  United  States.  A 
specific  performance  will  never  be  decreed  at  the  suit  of  the  vendor 
whenever  the  doubt  concerning  his  title  is  one  which  can  only  be 
settled  by  further  litigation,  or  when  the  court  can  see  that  the  pur- 
chaser will,  with  reasonable  iirobability,  be  exposed  to  bona  fide 
adverse  claims  on  the  part  of  third  persons,  and  to  the  risk  of  litiga- 
tion for  the  purpose  of  enforcing  such  claims.  The  reason  of  this  rule  is 
as  obvious  as  the  rule  itself  is  just.  The  jjresent  decree  binds  only  the 
parties  to  the  suit,  and  constitutes  no  bar  nor  even  obstacle  to  pro- 
ceedings by  those  who  assert  a  right  in  conflict  with  the  title  which 
the  vendor  purports  to  hold  and  to  transfer.(2)  This  liability  to  a 
future  controversy  may  arise  from  various  causes.  Among  the 
most  frequent  is  the  difficulty  of  construing  written  instruments 
which  form  a  part  of  the  title,  where  the  doubt  arises  upon  some 
ill-drawn  in  artificial  writing  upon  which  the  vendor's  title  partly  or 
wholly  depends.  In  such  a  case  the  doubt,  if  it  is  reasonal)ly  well 
founded,  must  necessarily  prevail  and  prevent  an  execution  of  the 
contract. (3)    Another  frequent  cause  consists  in  events  or  acts  collateral 

(1)  As  in  Collier  v.  McBean,  L.  R.  1  Ch.  81,  the  title  was  not  forced  on  the 
vendee,  since  the  M.  R.  had  pronounced  it  bad ;  the  appellate  coui-t  not  i^assing 
upon  it,  although  one  of  the  Ld.  J  J.  thougfht  it  good. 

(2)  In  language  often  repeated  by  the  courts,  both  in  this  country  and  in  Eng- 
land, a  vendee  **  will  not  be  compelled  to  buy  a  law  suit."  Price  v.  Strange,  6 
Mad.  159,  165  ;  Sharp  v.  Adcock,  4  Russ.  374;  Butler  v.  O'Hear,  1  Dessau.  E<j. 
382 ;  Parkin  v.  Thorold,  16  Beav.  67,  per  Romilly,  M.  R.  ;  Rogers  v.  Waterhouse, 
4  Drew.  329  ;  Dowson  v.  Solomon,  1  Dr.  &  Sm.  1 ;  Collier  v.  McBean,  14  W.  R. 
156;  Pegler  v.  "White,  33  Beav.  403  ;  Jeffries  v.  Jeffries,  117  Mass.  184  ;  Dobbs  v. 
Norcross,  24  N.  J.  Eq.  327;  [ Cornell  v.  Andrews,  35  N.  J  Eq.  7;  Paulmier  v. 
Howland,  49  N.  J.  Eq.  364;  Shi-iver  t;  Shriver,  86  N.  Y.  575,  .584,  per  Foujkk. 
Ch.  J.  ;  Fleming  v.  Burnham,  100  N.  Y.  1  ;  Tillotson  v.  Gesner,  33  N.  J  Eq  313 ; 
Kostenbader  v.  Spotts,  80  Pa.  St.  430;  Murray  v  Ellis,  112  Pa  St.  485  ;  Lock- 
man  J).  Reilly,  29  Hun,  434  ;  see,  also,  Universalist  Society  v  Dugan,  65  Md  460  ^ 
Emmert  v.  Stouffer,  64  Md.  544.] 

(3)  As  to  the  doul)t  arising  from  the  construction  of  writings,  see  Alexander  v. 
Mills,  L.  R.  6  Ch.  124.  An  illustration  of  this  class  of  doulits  is  seen  in  Cook  v. 
Dawson,  3  Deri.  F.  &  J.  127,  where  the  question  was,  whether  the  executrix, 
under  a  will,  could  sell  the  real  estate  in  jiaymentof  debts,  the  land  in  controvei-sy 
having  been  thus  sold.  This  question  depended  upon  another — whether  the  tes- 
tator had  in  his  will  "charged  the  fee  simple  with  the  payment  of  his  debts." 
The  doubt  arose,  therefore,  wholly  in  respect  to  this  question  of  construction. 
Knight  Bruck,  L.  J.,  said  (p.  129) :  "Did  the  will  do  sol  This  question  of  con- 
struction ajipears  to  me  one  of  difficulty  and  doubt;  of  difficulty  too  great,  and 
doubt  too  senons,  to  render  the  title  one  fit  to  V)e  forced  on  aj)urcha.ser."  Tuknbr, 
L.  J.,  said   (p.  130):   "One  judge   of  the   court  (the  M.   R.,  whose  decision  was 

295 


THE   TITLE  MUST  BE  FREE   FROM   DOUBT.  285 

to  the  title,  but  capable  of  destroying  its  validity,  the  legal  nature 
and  effect  of  which  can  only  be  ascertained  by  another  and  different 
judicial  proceedina-.(l) 

The  nature  and  extent  of  the  doubt  itself. 

yEc.  204.  II.  Whatever  be  the  cause  from  which  the  doubt  arises, 
whether  from  an  unsettled  principle  of  the  general  law,  or  from  the  diffi- 
culty of  construing  instruments,  or  from  past  facts  and  events,  it  must  be 
something  more  than  a  mere  speculation,  theory  or  possibility.  A  court 
of  justice,  in  all  its  investigations,  deals  with  arguments  more  or  less 
based  upon  a  balance  of  probabilities ;  and  in  rendering  its  decisions 
must  be  satisfied  if  it  reaches  a  conclusion  which  is  morally  certain.  To 
admit  of  objections  which  were  purely  speculative,  or  mere  possibilities, 
would  destroy  the  practical  efficacy  of  all  judicial  proceedings.  A  doubt 
covering  the  vendor's  title,  therefore,  which  can  avail  to  defeat  his 
remedy  of  specific  performance,  must  be  reasonable,  and  so  far  as  it 

appealed  from)  has  pronounced  the  title  bad.  If  we  were  to  declare  it  good, 
our  decision  would  not  be  binding  on  adverse  claimants  ;  and  if  a  suit  should  be 
instituted  to  impeach  the  pui-chaser's  title,  a  future  court  of  appeal  might  differ 
from  us  in  opinion.  The  cause  ought,  therefore,  to  be  clear  to  demonstration 
before  we  interfere  with  the  order  relieving  the  purchaser."  For  a  case  of  doubt- 
ful title  arising  on  the  construction  of  a  will,  see  Sohier  v.  Williams,  1  Curtis  C  C. 
479.  [See,  also,  Cunningham  v.  Blake,  121  Mass.  333  (doubtful  whether  will  cre- 
ates an  estate  in  fee.  in  the  vendor);  Butts -y.  Andrews,  136  Mass.  221  (same); 
Fleming  7).  Burnham,  100  N.  Y.  1  (same);  Hunting  v.  Damon,  160  Mass  441 
(same) ;  Palmer  v.  Morrison,  104  N.  Y.  132.] 

(1)  As  an  example  of  such  events  or  acts  is  a  breach  of  ti-ust  committed  by 
some  party  which  would  render  the  title  impeachable  at  the  suit  of  the  cestuis  que 
triLstent,  Rede  v.  Oakes,  4  De  G.  J.  &  S.  505,  is  a  case.  Land  had  been  sold  by 
vendors,  some  of  whom  were  trustees,  and  the  question  was  whether  this  contract 
of  sale  was  a  breach  of  trust,  so  that  the  cestuis  que  tritstent  might  attack  the 
conveyance.  On  account  of  the  doubt  thus  cast  upon  the  title,  the  purchaser 
refused  to  complete.  The  M.  R.  had  held  the  title  good  and  decreed  a  specific 
jierformance.  Per  Knight  Bruce,  L.  J.,  p.  512  :  "The  doctrine  applicable  to  cases 
of  specific  performance,  is,  in  my  judgment,  opposed  to  gi-anting  a  specific  per- 
formance in  this  case  ;  for  if  it  is  not  clear  that  the  contract  (of  sale)  was  a  breach 
of  trust  on  the  part  of  each  set  of  trustees,  it  must  be  held,  I,  think,  to  be  at  least 
reasonably  and  seriously  doubtful  whether  it  was  not  so."  Per  Turner,  L.  J., 
p.  513  :  "  The  true  question  on  which  the  validity  of  such  a  sale  must  depend, 
seems  to  me  to  be  this :  Was  or  was  not  the  sale  made  under  such  circum- 
stances and  in  such  a  mannei*  as  that  cestuis  que  trustent  ought  to  be  held  bound 
by  it  ?  If  it  was,  the  title  of  the  pur(;haser  could  not,  I  apprehend,  be  im- 
peached. If  it  was  not,  his  title  would,  I  ajiprehend,  be  liable  to  impeach- 
ment at  the  suit  of  the  cestuis  que  trnsfe7it."  He  goes  on  to  examine  the  con- 
tract, the  pai'ticulars  and  conditions  of  the  sale,  and  the  circumstances  under 
which  it  was  made,  and  concludes  thus,  p.  515  :  "  I  cannot  but  think  that  it  is  at 
least  doubtful  whether  cestuis  que  trustent  can  be  bound  by  a  rule  made  by  their 
trustees  under  such  circumstances.  I  go  no  further  than  to  say  that  is  doubtful  ? 
for  if  there  be  a  doubt,  it  cannot,  in  my  opinion,  be  thrown  upon  the  purchaser 
to  contest  that  doubt." 

296 


1 


286  SPRCIFIC    PERFORM ASCE   OF  CONTRACTS. 

depends  upon  contingent  events  and  uncertain  facts,  tlieir  occurrence 
or  existence  must  be  fairly  probable, (1) 

Sec.  205.  In  Knj^laiid,  niiicli  oftriior  than  in  The  United  States,  titles 
may  sometinn's  depend  for  their  validity  upon  presumptions  in 

reference  to  some  collateral   acts,  fact?;,  or  events  which   jierhap.-s  are 

(1)  In  Ly<l(hvl -?).  Westtiii.  2  Atk.  20,  Lord  Hakdwickk  said:  "Tlu;  court  must 
govern  itself  by  a  nu>ral  certainty,  for  it  is  impos.'^ibh'  in  tht;  nature  of  things  there 
should  be  a  matlieniatieal  certainty  of  a  good  title  "  And  it  lieing  objected  that 
there  was  a  resei-vation  of  mines  which  made  the  title  defective,  he  yet  enfoi-ced 
the  contrax^t  be<aas(!  he  was  satisfied  that  there  was  no  i)robability  of  the  reser- 
vation becoming  operatix'e,  since  either  lhei*e  were  no  mines,  or  that  all  legal  I'ight 
to  act  under  it  has  ceased.  See  Seaman  v.  Vawdrey,  It)  Ves.  393,  per  Sir  Wm. 
Grant;  Martin  v.  Cotter,  3  J.  &  Lat.  496,  and  in  Cattell  v.  Corrall,  4  Y.  &.  C. 
Ex.  237,  Alderson,  B.,  said,  in  regard  to  a  doubt  from  fear  of  future  litigation, 
there  "must  be  a  reasonable  decent  jjrobability  of  litigation."  In  Spencer  i\  Top- 
ham,  22  Beav.  573,  the  title  depended  upon  the  validity  of  a  former  purchase  by 
a  solicitor  from  his  client,  and  it  was  objected  that  it  was  doubtful ;  but  proof  was 
given  that  the  sale  by  the  client  to  the  attorney  was  valid,  although  given  without 
the  presence  and  testimony,  of  the  client ;  and  it  being  still  objected  that  the  client 
might  be  able  to  produce  other  evidence  impeaching  the  transaction  and  thus 
invalidating  it,  the  M.  R.,  Sii-  J.-  Romilly,  considered  that  this  was  a  mere  specu- 
lative possibility,  and  not  ground  for  i-easonable  doubt.  In  support  of  the  rule 
stated  in  the  text  see,  also,  Vreeland  v.  Blauvelt,  23  N.  J.  Ecp  483  ;  Kostenbader 
V.  Spotts,  80  Pa.  St.  430  ;  [Dow  v.  "Whitney.  147  Mass.  1  ;  First  African,  etc..  Society 
V.  Brown,  147  Mass,  20(5  ;  Butt  v.  Mallon,  151  Mass.  477  ;  Moser  v.  Cochrane,  107 
N.  Y..  35  ;  Vought  v  Williams,  120  N.  Y.  253  ;  Cambrelling  v.  Purton,  125  N.  Y. 
610 ;  Gi-iflPet  v  Willman,  (Mo  )  21  S.  W.  Rep  459  ;  Rife  v.  Lybarger,  49  Ohio  St. 
422 ;  Ballou  v.  Sherwood,  (Nebr  )  49  N.  W.  Rep.  790 ;  Levy  v.  Iroquois  Bldg.  Co., 
(Md.)  30  Atl.  Rep.  707  ;  Seldner  y.  McCreery  (Md.)  23  Atl.  Rep.  641 ;  Hedderly 
1).  Johnson,  42  Minn  443.  As  to  title  by  adverse  possession,  see  Foreman  v. 
"Wolf,  (Md.)  29  Atl.  Rep  837,  citing  Surman  v.  IIul)ner,  75  Md.  209;  Boggs 
t>.  Bodkin,  32  W  Va.  5(36  ;  Noyes  v.  Johnson,  139  Mass.  436.  The  following 
statements  are  selected  as  tending  to  show  what  is  the  rule  upon  this  point. 
"As  to  what  doubts  will  be  sufficient  no  general  rule  can  be  laid  down.  In 
the  case  of  Dobbs  v.  Norcross,  24  N.  J.  Eq.  R.  327,  the  chancellor  says  :  'Every 
purchaser  of  land  has  a  right  to  demand  a  title  which  shall  put  him  in  all 
reasonable  security,  and  which  shall  protect  him  from  anxiety,  lest  annoying 
if  not  successful  suits  be  brought  against  him,  and  probably  take  from  him  or 
his  re  >resentatives  land  upon  which  money  was  invested.  He  should  have  a 
title  which  shall  enable  him,  not  only  to  hold  his  land,  but  to  hold  it  in  peace ; 
and  if  he  wishes  to  see  it,  to  be  reasonal)ly  sure  that  no  flaw  oi*  doubt  will  come 
up  to  disturb  its  marketable  value.'  But  a  threat  or  even  the  possibility  of  a 
contest,  will  not  be  sufTicient.  The  doubt  must  be  considerable  and  rational, 
such  ill-  would  or  ought  to  induce  a  prudent  man  to  pau.se  and  hesitate  ;  and  not 
l)ascd  on  captious,  frivolous  and  astute  niceties,  but  such  as  to  produce  real  bona 
fide  hesitation  in  the  mind  of  the  chancellor."  Miller,  J.,  Gill  v.  Watts.  59  Md. 
49  J  ;  TlUotson  v.  Ge.sner,  33  N.  J.  Eq.  313  ;  Coniell  v.  Andrus,  35  N.  J.  E(i.  7  ; 
Kostenbader  v.  Spotts,  80  Pa.  St.  430.  Where  the  question  was  as  to  the  suffi- 
ciency of  the  record  title  tracer!  through  an  "  Electa  Wilds  "  and  an  "  Electa 
Wilder,"  which  under  the  cii-cumstances  was  held  not  a  sufficient  defectt  to  bar 
specific  performance,  it  was  said  that  a  "  i*easonable  doubt  is  such  as  affects  the 

297 


286  SPECIFIC  PERFORMANCE   OF   CONTRACTS. 

incapable  of  proof  by  direct  evidence,  aud  the  rule  seems  to  be  settled 
that  a  title  sustained  by  such  a  presumption  will  be  held  free  from 
doubt,  and  forced  upon  the  vendee,  whenever  the  circumstances  of  the 
case  are  such  that,  had  it  been  pending  before  a  jury,  the  judge  would 
have  directed  them  peremptorily  to  find  the  fact  in  accordance  with 
the  presumption ;  but  the  title  will  be  held  too  doubtful  to  be  forced 
on  the  vendee,  whenever  the  circumstances  would  have  been  submitted 
to  the  jury  for  them  to  find  either  in  conformity  with  or  against  the 

value  of  the  title,  and  would  interfere  with  its  sale  to  a  reasonable  purchaser  and 
thus  render  the  title  unmarketable."  Hellreigel  v.  Manning',  97  N  Y.  56  As  to 
misnomers,  see  Middleton  v.  Finola,  25  Cal.  76.  In  List  v  Rodney,  83  Pa.  St  483, 
it  is  said  that  every  title  is  doubtful  which  exposes  the  party  holding  it  to  litiga- 
tion. "Where  the  question  was  whether  the  possibility  of  a  decedent's  debts,  and 
the  discovery  of  his  will,  in  the  absence  of  evidence  of  debts  or  insufficient  per- 
sonal estate  was  a  defect  in  title,  which  question  was  decided  in  the  negative,  the 
court  approved  the  rule  in  Schermerhorn  v.  Niblo,  2  Bosw  161,  that  "as  the  law 
does  not  regard  ti-ifies,  a  bare  possibility  that  the  title  may  be  affected  by  the 
existing  causes  which  may  subsequently  be  developed,  when  the  highest  evi- 
dence of  which  the  nature  of  the  case  admits,  amounting  to  a  moral  certainty,  is 
given,  that  no  such  cause  exists,  will  not  be  regarded  as  a  sufficient  ground  for 
declining  to  compel  a  purchaser  to  perform  his  contract."  Moser  v>  Cockrane, 
107  N.  Y.  35  ;  Bay  lis  v.  Stimson,  110  N.  Y.  621.  The  following  are  instances  of 
doubtful  titles  or  of  questions  that  threw  doubt  ui^on  the  title.  Where  the  title 
Was  affected  by  the  possibility  that  a  woman  seventy  years  old  might  have  issue, 
"  the  presumption  of  law  is  in  favor  of  issue,  notwithstanding  advanced  age."  List 
V.  Rodney,  83  Pa.  St.  483.  The  right  of  a  wife  in  her  husband's  homestead  after 
a  divorce  a  mensa  et  ttoro,  Castlebury  v.  Maynard,  95  N.  Car.  281.  A  convey- 
ance of  land,  voluntary  on  its  face,  by  a  defendant  just  before  judgment  for  a 
large  sum,  without  strong  proof  that  such  conveyance  was  bo7UX  fide.  Tillotson 
V.  Gesner,  33  N.  J.  Eq.  313.  Whei-e  there  was  a  doubt  as  to  boundaries,  which 
would  have  to  be  determined  by  a  jury.  Holt's  Appeal,  98  Pa.  St.  257.  The 
rule  applies  with  equal  force  where  the  doubt  pi-oceeds  from  the  form  of  convey- 
ance, as  from  the  title  of  the  vendor,  as  where  his  deed  is  defectively  executed. 
Tiffin  City  v.  Shawhan,  43  Oh.  St.  178.  And  where  the  purchaser  buys  with  a 
special  object  in  view,  relying  on  the  title,  he  is  well  justified  in  refusing  to  carry 
out  the  contract,  if  the  land  is  encumbered  with  judgments  and  a  deed  of  trust, 
although  at  the  time  of  suit  by  the  vendor,  he  has  had  the  amount  of  liens  ascer- 
trined,  and  they  may  be  paid  out  of  the  purchase-money.  Kenny  v.  Hoffman, 
31  Gratt.  442.  That  the  purchaser  must  await  the  determination  of  a  suit  before 
he  can  be  assured  of  his  title.  Parsons  v.  Gilbert,  45  Iowa,  33  ;  Murray  v.  Ellis, 
112  Pa.  St.  485.  Or  where  certain  interested  infant  heirs  were  omitted  from  the 
petition  to  sell.  Shields  v.  Allen,  77  N.  C,  375.  The  court  will  consider  a  title 
doubtful  where  the  easements  of  adjoining  land  owners  are  uncertain.  Hymers 
V.  Branch,  6  Mo.  Ap.  511.  The  burden  of  proof  is  on  the  vendor  to  show  a  title 
free  from  doubt,  the  vendee  ha\ang  denied  such  fact.  Cornell  v.  Andrews,  30  N 
J.  Eq  321  ;  but  see  Logan  v.  Bull,  78  Ky.  607.  The  defective  execution  of  pmoers. 
— Titles  derived  from  instruments  defectively  executed  under  a  power  have  been 
held  doubtful  and  not  such  as  a  vendee  might  require.  Coleman  v.  Beach,  97  N. 
298 


286  SPECIFIC    PERFORMANCE  OF  CONTRACTS, 

presumption. (2)  Whenever  a  doubt  concerning  the  title  arises  from 
facts  which  are  not  conchisively  proved,  and  is  not  aided  by  any  clear 
presumption,  it  will  generally  prevail  and  prevent  a  specific  perform- 
ance. (8) 

8ec  206.  Intimately  connected  with  the  general  subject  of  doubt 
arising  from  extrinsic  facts,  with  or  without  the  help  of  presumptions, 
is  the  rule,  well  settled  in  England,  that  a  person  who  lias  made  a 
prior  voluntary  settlement,  cannot  force  upon  a  purchaser  a  title 
depending  for  its  validity  upon  the  fact  that  such  settlement  is  void, 
because  there  is  no  presumption  "  that  there  may  not  have  been  some 
intermediate  acts,  which  by  matter  ex  post  facto,  may  have  made  the 

Y  545  ;  Benedict  v  Webb,  98  N.  Y.  400.  If  a  trustee  ai^poiated  by  court  to 
execute  a  trust  created  by  will  in  two  trustees,  who  deceased,  conforms  to  the 
order  of  the  court,  such  deed  is  sufficient.  Yard  v.  Larinson,  39  N.  J  Eq.  388. 
So  where  two  executors  were  given  absolute  power  of  sale,  one,  having-  resigned, 
bought  of  the  other,  and  sold  to  the  defendant,  it  was  held  such  conveyance  was 
Bufticient  and  the  title  good.  Clark  v  Denton,  36  N  J  Eq.  419.  The  objec- 
tion that  cei'tain  beneficiaries  under  a  trust  were  not  parties  to  a  foreclosure 
was  held  no  defect  of  title  in  Lockman  v.  Reilly,  95  N  Y.  G4.  But  a  pur- 
chaser is  entitled  to  have  the  concurrence  of  a  naked  trustee  to  a  deed  from 
the  beneficiaries.  Read  v.  Power,  12  R.  I.  16.  In  the  following  ca.ses  the 
title  was  said  not  to  be  doubtful  and  conveyance  was  ordered  :  Where  the  lapse 
of  time  between  recording  the  mortgage  and  the  filing  the  bill  raises  pi-esump- 
tion  of  payment  of  a  mortgage,  Jones  v.  Fulgham,  3  Tenn.  Ch.  193.  Where  there 
Ls  an  undischarged  tax  lien,  that  subsequent  to  the  bill  is  jiaid.  Young  v.  Collier, 
31  N.  J  Eq  444.  Wliere  a  deed  40  years  old  was  executed  before  an  official,  but 
without  evidence  of  his  authority.  Fryer  v.  Rockefeller,  63  N.  Y.  268.  Where  a 
wife  failed  to  acknowledge  a  deed  apart  from  her  husband,  Ludlow  v.  O'Neil,  29 
Oh.  St.  181.] 

(2)  Emery  v.  Grocock,  6  Mad.  54  ;  Barnwell  v.  Harris,  1  Taunt.  430  ;  [Shriver 
}.  Shriver,  86  N  Y.  575,  584,  per  FouiEK,  Ch.  J.  See,  also,  Fleming  v.  Burn- 
ham,  100  N.  Y.  1]  In  Causton  v.  Macklew,  2  Sim.  242,  the  validity  of  the  title 
depended  upon  the  fact  of  no  execution  on  certain  judgments  having  been  issued 
between  two  dates,  about  eight  months  apart.  Nothing  having  been  proved  to 
have  happened  or  to  have  been  done  which  could  be  referred  to  such  execution, 
M  was  presumed  that  the  execution  was  not  issued,  and  the  title  was  accordingly 
held  good.  For  presumptions  arising  from  i-ecitals  in  deeds  and  long  possession, 
3ee  Prosser  v.  Watts,  6  Mad.  50  ;  Magennis  x\  Fallon,  2  Moll.  561. 

(3)  As  examples .  a  title  deiiended  for  its  validity  upon  the  fact  that  there  was 
no  creditor  who  couid  take  advantage  of  an  act  of  liankruptcy  committed  by  the 
vendor ;  there  being  no  proof  of  such  fact,  and  there  being  no  presumption,  the 

299 


THE    TITLE   MT'ST   BE'   FREE   FROM  DOUBT.  287 

settleinent  good  which  in  its  origin  was  not  good."(l)  Bat  on  the 
other  hand,  if  the  validity  of  a  title  depends  upon  the  fact  that  a 
certain  prior  voluntary  conveyance  of  tlie  land  has  been  rendered 
void  against  the  purchaser  by  a  subsequent  purchase  for  a  valuable 
consideration  and  without  notice,  it  will  be  presumed,  in  the  absence 
of  evidence  to  the  contrary,  that  the  voluntary  conveyance  had  not 
been  made  valid  by  any  subsequent  acts,  and  so  the  title  wil  be  pro- 
nounced free  from  doubt  and  forced  upon  a  vendee. (2)  The  reason 
for  this  distinction  is  evident.  In  the  latter  case  a  presumption  is 
made  to  sustain  a  subsequent  conveyance  for  value  and  without  notice, 
which  has  actually  been  executed,  and  by  operation  of  law  has 
destroyed  the  prior  voluntary  conveyance,  unless  some  intervening 
facts  had  made  the  prior  conveyance  valid ;  the  court  does  not  presume 
that  there  were  such  facts.  In  the  former  case,  a  party  is  attempt- 
ing to  overthrow  a  voluntary  conveyance  which  he  himself  had  made, 
and  which  possibly  may  have  become  valid,  and  the  court  will  aid 
him  by  no  presumption  that  it  has  not  been  thus  validated. 

Sec  207.  Where  the  vendor's  title  is  objected  to  on  the  ground  that 
it  is  prejudicially  affected  by  actual  fraud  in  some  prior  conveyances 
or  transactions  from  and  through  which  it  is  and  must  be  derived,  no 
very  general  or  definite  rule  is  possible,  and  each  case  must  depend, 
to  a  great  extent,  upon  it  own  circumstances.  The  fraud  must,  of 
course,  inhere  in  extrinsic  facts,  which  will  not  appear  on  the  face  of 
the  title  deeds,  an  abstract  of  which  is  examined  by  the  purchaser, 
and  which  will,  in  general,  be  unknown  to  him,  and  often  impos- 
sible or,  at  least,  difficult  for  him  to  ascertain.  If,  therefore,  there 
are  any  circumstances  sufficient  to  throw  an  ap[)arently  well-founded 
suspicion  upon  the  title,  it  would  appear  that  no  presumption  should 
be  admitted  in  in  its  support;  but  such  a  conclusion,  however  reason- 
able, is  not  warranted  by  all  the  decided  cases,  some  of  which  have 

doubt  prevailed,  Lowes  v.  Lush,  14  Ves.  547 ; — the  validity  of  a  title  depended 
upon  the  absence  of  notice  of  an  incumbrance,  Freer  v.  Hesse,  4  De  G.  M  &  G. 
495 ; — where  it  depended  u^jon  mere  possession  and  the  presumption  arising 
therefrom,  Eyton  v'.  Dicker,  4  Pri  3013  [A  title  ft)unded  on  adiierse  possession 
for  the  time  prescribed  by  the  statute  of  limitation  may  be  forced  upon  a  pur- 
chaser. Kip  V.  Hirsch,  lOJ  N  Y.  5SG  ;  bat,  if  it  is  doubtful  whether  the  posses- 
sion was  adverse,  he  will  not  be  compelled  to  talve  the  title  ;  Shriver  v  Shriver, 
80  N.  Y.  575,  in  which  case  it  was  not  shown  that  the  parties  to  be  affected  by 
the  running  of  the  statute  were  not  imder  disability.  A  title  depending  on  the 
l)resump'aon  that  a  person  who  has  not  been  heard  from  for  twenty-four  years  is 
dead,  without  issue,  will  not  be  forced  upon  purchaser.  Vought  v.  Williams,  120 
N.  Y.  253.  0:;herwise  held  in  Ferry  v  Sampson,  112  N.  Y.  415,  where  the  absence 
had  continued  for  forty  years.] 

( 1 )  Lord  Eldon,  in  Johnson  v.  Legard,  T.  &  R.  294  ;  Smith  v.  Garland,  2  Meriv. 
123. 

(2)  In  such  cases  the  title  in  suit  would,  of  course,  be  derived  from  the  sub. 
sequent  conveyance  for  a  valuable  consideration,  by  which  the  piior  voluntary 
(vinveyance  was  invalidated.  Butlei-lield  v.  Heath,  15  Beav.  408 ;  Buckle  v. 
Mitchell.  18  Ves.  100 

'500 


288  Sl'kCIFIC   PKHFORMASCh:    OF  COXTR ACTS. 

allowed  a  presumption  of  good  faith  to  overcome  the  objection,  remove 
the  doubt  and  render  the  title  one  to  be  forced  on  a  purchaser. (1) 

iSec.  208.  Under  the  former  Englisli  jaw  in  reference  to  the  jirobate 
of  wills,  no  sufficient  doubt  of  the  validity  of  a  vendor's  title  derived 
under  a  "will  could  arise  from  the  mere  fact  that  the  will  had  not  been 

(1)  Tho  cases  are  somowhat  conrticting-,  but  the  toiulciicy  i«  in  favor  of  a  i)re- 
sumption  of  good  faith  whei-c  tlio  ciiruinstances  go  no  fartlu'r  than  to  raise  a  sus- 
picion of  fraud.  In  Hartley  v.  Smith,  IJuck's  JJank'y  Cases,  3GS,  ;5S(),  Sir  Joiijj 
Leach,  M.  R.,  laid  down  a  rule  whieh  would  cutotl'all  presumption  of  good  faith. 
The  title  depended  upon  a  grant  of  chattels  which  contained  a  j)rovision  f(.r  the 
grantor's  continuing  in  pos.session  in  a  cei-tain  contingency.  Undei"  the  law  as 
to  transfer  of  chattels  by  assignors  remaining  in  posses.sion,  this  assignment  might 
be  void.  Without  deciding  that  cpiestion  the  court  held  that  as  the  transfer  might 
be  void,  aad  as  it  was  fraudulent  and  void  luile.-s  made  bona  fide  and  for  a  valu- 
able consideration,  and  as  this  dei)ended  upon  facts  l)eyond  the  jiurchasei-'s  jiower 
of  readily  ascertaining,  tlie  title  was  too  doubtful  to  befoi-ced  upon  hiiu.  lie  said  : 
"  My  opinion  therefore  is,  that  a  court  of  e(iuity  ought  not  to  compel  this  jjui-chaser 
to  a  cept  this  title  ;  because,  assuming  the  deed  not  to  be  fraudulent  on  its  face, 
it  still  may  be  avoided  by  circumstances  extrinsic,  which  it  is  neither  in  the  power 
of  the  purchaser  nor  of  this  court  to  I'cach."  8ee,  also,  Bo.swell  •?'.  Mendham,  6 
Mad.  iiTS,  The  rule  thus  broadly  stated,  and  which  cuts  off  any  jiresumijtion 
of  good  faith  in  all  cases  whei'C  there  is  a  suspicion  of  fraud  ai-ising  from  jirior 
external  facts,  has  not  Ijeen  adopted  in  subsequent  cases  which  have  admitted 
such  a  presimiption.  In  Cattell  v.  Corral),  4  Y.  &  C.  Ex.  228,  2;]G,  A.ndekso.n,  B., 
said  of  Sir  J.  Leach's  opinion,  that  it  "must  not  be  pushed  to  the  farthest  extent 
which  the  words  will  jwssibly  bear ; "  and  he  held  a  title  free  from  sutticient  doubt, 
which  was  made  upon  a  deed  which  might  have  been  shown  by  extrinsic  evidence, 
to  be  fraudulent  and  void  as  against  creditors, — sustaining  it  because  there  was 
no  sufHcient  evidence  from  which  to  infer  sv;ch  an  invalid  character — in  other 
words,  a  presumption  of  good  faith  was  admitted.  [In  Tillotson  v.  Gesner,  33  N. 
J.  Eq.  327,  plaintiff's  title  depended  on  a  conveyance,  voluntary  on  its  face,  made 
by  a  defendant  in  a  suit  just  before  judgment  for  a  large  sinu  was  rendered 
against  him,  which  judgment  would  have  lieen  a  lien  on  the  laud  if  such  convey- 
ance had  not  been  nuide  ;  in  the  absence  of  sti-ong  proof  that  the  conveyance  was 
maile  bona  fide  and  for  a  valuable  consideration,  specific  performance  was  I'efused.] 
In  Green  v.  Pulsford,  2  Beav.  71,  the  vendor's  title  was  derived  from  an  appoint- 
ment made  by  a  husband  and  wife  who  held  tiy  virtue  of  a  settlement  on  them- 
selves and  their  children,  with  jiower  to  ai)point.  There  wej-e  circumstances  on  the 
face  of  the  papers  raising  a  suspicion  that  the  apjiointment  was  a  fraud  iqion  the 
settlement  and  the  i-ig'hts  of  the  childi-en  luider  it,  and  one  of  the  children  had 
actually  notilied  the  purchaser  not  to  comiih^fc  because  the  apiiointment  was  a 
fraud.  But  as  this  notice  stated  no  facts,  and  gave  no  information  in  addition  to 
what  appeared  on  the  title  jiapers,  and  as  it  had  been  followed  liy  no  proceedings 
on  the  jiart  of  the  children,  the  court  held  that  the  doubt  was  not  sufHcient  to  i)re- 
vcnt  a  f'leci fie  performance.  For  analogous  cases  see  McQueen  •?',  Farquhar,  11 
Ve;-,.  4  J7  ;  Grove  v.  Bastai-d,  2  Thill.  G19  ;  1  De  G  M.  &  G.  (39.  [The  gi-antor  of 
the  plaintiff  had,  six  years  previous  to  the  commencement  of  the  suit,  filedajniiier 
in  '.'.13  regi.-try  of  deeds,  alleging  that  the  conveyance  was  obtained  IVom  him  by 
fraud  and  th;it  he  shall  dispute  the  title.  There  was  no  provision  by  statute  for 
filing  any  such  document,  and  it  therefore  acquired  no  greater  imiiortance  fi-oni 
being  thus  tiled,  and  amounted  to  a  mere  assertion,  inisiq)ported  by  any  eviden((' 
or  any  subsequent  action  on  the  i)art  of  the  i)laintiir's  grantor.  It  was  held  that 
thi:i  notice  did  not  raise  such  a  doubt  concerning  the  ])laintify's  title  as  would  pi-e- 
vent  sijecific  perfoi-mance.  First  African,  etc.,  So(-iety  r.  Brown,  147  Ma.ss.  20(). 
Further  case.s  in  which  it  was  held  that  fraud  not  appearing  on  the  face  of  the 
record  does  not  render  the  tide;  doubtful.  Close  ■?'.  Stuyvesant,  132  111.  C07  ; 
Ni(-hoI.son  ■?)  Condon,  71  Md.  0  O.J  Ou  the  other  hand,  for  a  case  where  the  coui't 
refused  to  presume  the  existent^e  of  sjjeciid  facts  necessaiy  to  make  a  title  valid, 
see  Blacldow  v.  Laws,  2  Ilai-e,  40.  [In  this  connection  the  rule  may  be  referi-ed 
to.  that  if  a  ]iurcha.ser  wi.h  notice  of  fraud  in  the  chain  of  title  accpiires  title  fi-om 
a  grantor  who  was  without  such  notice,  and  was  bovafulc,  he  succeeila  to  all  the 
rights  of  his  grantor.  "  In  fact,  when  laml  once  comes  into  the  hands  of  a  bona 
fide.  ])urchaser.  he  obtains  a  comphite  J:/.s  dispini/'ndi  [with  an  exci'ption  men- 
lionecn,  and  may  transfei-  a  jun-fect  title  even  to  volunti'ei-s."  Pom.  K(\.  Jur  , 
§7.')4  and  note,  with  case -i  cited.  A  bona  fid"  purchaser  may.  therefoi-e,  force  a 
title  upon  one,  the  vendee  having  notice  of  the  pendency  of  an  action  to  set  aside 
adeedin  the  chain  oftitle  on  the  ground  of  fraud.    Aldrich  i\  Bailev.  132  N.  Y.  Sf).  ! 

bOl 


MUtiT  BE  FRh'E  FROM  MISREPRESENTATIOlS.  289 

-proved  against  the  heir  or  that  he  did  not  join  in  the  conveyance.(l) 
Whe.her  the  same  rule  should  prevail  in  the  American  States,  where 
the  statutes  provide  for  the  proof  of  wills  of  real  estate,  and  where 
such  proof  is  a  matter  of  universal  practice,  or  even  in  England  since 
the  recent  legislation  upon  the  subject  of  probate,  may,  I  think,  be 
at  least  questionable.  In  this  country  the  omission  to  prove  a  will 
of  land  would  be  a  very  uiuisual  circumstance,  and  would  certainly 
render  a  title  made  under  it  very  suspicious  to  an  ordinary  buyer, 
and,  unless  the  will  was  an  ancient  one,  would  certainly  prevent  a 
savings  bank  or  other  similar  institution  from  accepting  the  title  as 
a  valid  security  for  a  loan.  In  deciding  upon  cases  of  doubtful  title, 
and  in  forcing  them  upon  a  purchaser,  courts  of  equity  should  and 
undoubtedly  do  pay  a  great  respect  to  the  views  and  habits  of  busi- 
ness men 


Third  Group. 

.Incidents  and  features  of  the  contract  connected  with  or  growing  out  of  the 
conduct — generally  preliminary — of  the  parties,  which  involve  the 
validity  of  the  contract  and  may  render  it  voidable,  and  which,  there- 
fore, as  a  matter  of  strict  right,  affect  the  equitable  remedy, 

SECTION  XII. 

The  contract  must  be  free  from  misrepresentation. 

Section  209.  The  incidents  and  features  which  form  this  third 
group  generally  spring  from  the  conduct  of  the  parties  during  the 
negotiation,  or  at  the  time  of  concluding  the  agreement,  and  are, 
therefore,  to  a  great  extent,  rather  collateral  or  preliminary  to  the 
contract  than  forming  a  part  of  its  substance.  This  is  not,  however, 
universally  the  case,  for  some  of  them,  as,  for  example,  illegality, 
inhere  in  the  very  subject-matter  or  in  the  stipulations.  Their  most 
important  characteristic,  which  distinguishes  them  from  the  incidents 
composing  the  preceding  group,  is  their  direct  effect  upon  the  validity 

(1)  Colton  V.  Wilson,  3  P.  Wins.  190  ;  Morrison  t).  Arnold,  19  Ves.  670.  per  Lord 
Eldon  ;  Weddall  v.  Nixon,  17  Beav.  160  ;  McCidloch  v.  Gregory,  3  K.  &  J.  12.  In 
the  latter  case,  the  vendor's  title  was  derived  from  a  certain  will, — the  validity  of 
■which,  during  a  long  litigation  (of  13  years)  had  not  been  questioned — and  a  third 
person  claiming  under  another  will  had  withdrawn  his  claim  and  abandoned  all 
contest,  the  title  was  held  to  be  free  from  doubt  and  was  forced  on  the  vendee. 
302 


290  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

of  the  agreement  itself.  If  any  one  of  these  features  exists  in  its  full 
measure  the  contract  is  thereby  rendered  voidable,  both  in  law  and  in 
equity;  a  complete  defense  exists  to  an  action  at  law  brought  upon 
it,  and  a  ground  is  furnished  for  a  suit  in  equity  to  rescind  it.  The 
presen.se  of  these  incidents  and  features,  therefore,  })revents  a  court 
from  granting  the  etpiitable  remedy  of  specific  performance,  not  in 
any  view  of  the  subject  as  a  matter  of  discretion,  but  as  a  m.iltt'r  of 
absolute  right,  since  there  really  is  no  valid  contract  which  may  be 
enforced.  It  is  true  that  some  of  these  incidents — misrepresentation 
and  concealment — may  avail  to  defeat  a  specific  execution  of  an  agree- 
ment, although  they  may  not  possess  the  elements  of  fraud  to  such  an 
extent  that  the  agi'eement  would  be  rescinded  ;  but  when  the  misrep- 
resentation, concealment,  fraud,  illegality,  mistake,  and  the  like,  are 
fully  shown,  and  the  contract  is  thereby  made  voidable,  the  defense 
to  a  suit  for  specific  performance  is  absolute,  and  in  no  sense  dis- 
■cretionary.  The  incident  which  forms  the  subject-matter  of  the 
present  section  is  "  misrepresentation." 

Sec.  210.  Although  misrepresentations  are  more  frequently  made 
by  the  vendors  in  contracts  for  the  sale  or  transfer  of  property,  real  or 
personal,  they  may  be  made  by  either  of  the  parties  in  any  species  of 
agreement,  and  the  treatment  of  the  subject  must  be  so  general  as  to 
cover  all  of  these  cases.  The  general  doctrine  is  elementary,  that  a 
misrepresentation  relating  to  and  connected  with  a  contract,  is  a 
ground  for  denying  a  specific  performance  when  demanded  by  the 
party  to  the  agreement  who  made  it,  and  may  be  a  sufficient  ground 
for  granting  the  relief  of  recision  in  favor  of  the  contracting  party  to 
■whom  it  was  niade.(l)     The  general  rule  is  familiar,  and  the  discus- 

(1)  Edwards  v.  McLeay,  Coop.  308  ;  5  Sw.  287  ;  Gibson  v.  D'Este,  2  Y.  &  C.  C. 
C.  542  ;  "Wilde  v.  Gibson,  1  H.  L.  Cas.  605  ;  Juzan  v.  Toulmin,  9  Ala.  662 ;  Warner 
V.  Daniels,  1  W.  &  M  90  ;  Taylor  v.  Fleet,  1  Barb.  471  ;  Best  v.  Stow,  2  Sandf. 
Ch.  298  ;  Morrison  v.  Lods,  39  Cal.  381  ;  Wells  v.  Millett.  23  Wi.sc.  64  ;  Holmes' 
Appeal,  77  Pa.  St.  50  ;  Law  v.  Grant,  37  Wise.  548  ;  Swimm  ?).  Bush,  23  Mich.  99  ; 
Hickey  t).  Drake,  47  Mo.  369  ;  Gimby   v.  Sinter.  64  Md.  237  ;  Davis  v.  Synionds, 

1  Cox,  407  ;  Reynell  v.  Sprye,  8  Hai-e,  222  ;  1  DeG.  M.  &  G.  660  ;  Lord  Bi-ooke  v. 
Rounthwaite,  5  Hare,  298  ;  Brealey  v.  Collin.s,  Younge,  317  ;  Lowndes  v.  Lane,  2 
Cox,  363  ;  Stewart  v.  Alliston,  1  Meriv.  26  ;  Harris  o.  Kemble,  1  Sim.  Ill  ;  5  Bligh 
(N.  S.),  730  ;  2  D.  &  C.  463  ;  Cox  v.  Middleton,  2  Drew.  209  ;  Price  v.  Macanley, 

2  DeG.  M.  &  G.  339  ;  Rawlins  v.  Wickham.  1  Giff.  3.');")  ;  3  DeG.  &  J.  304  ;  Higg-ins 
V.  Samels,  2  J.  &  H.  460  ;  Farebrother  v.  Gibson,  1  DeG.  &  .1  602  ;  l>nt  see  John- 
son V.  Smart,  2  Giff.  1.')1  ;  Cook  v.  Wangh,  2  Giff  201  ;  Hoynton  v  Hazelboom,  14 
Allen,  107.  [Hickey  v  Drake,  47  Mo  369  ;  Daniel  v.  Mitohell,  1  Story,  172  ;  Plum- 
mer  v  Keppler,  26  N.  J.  £(£.  481 ;  Hill  v.  Browei-,  76  N.  C.  124  ;  Lindsay  v.  Veasy, 
62  Ala.  421. 1  The  misrepresentation,  when  willful,  intentional,  or  wi'.h  ];nowledg-e, 
need  not,  necessarily,  extend  to  the  entire  subject-matter  of  the  contract,  or  affect 
all  the  relations  created  by  such  contract.  A  partial  misrepresentation — that  is, 
•one  applying  only  to  some  distinct  portion  of  the  subject-matter,  or  affecting  only 

303 


3IUST  BE  FREK  FROM  3IISREFRESENTATI0N.  291 

sion  of  it  will  chiefly  consist  in  analyzing  and  defining  the  elements 
of  a  misrepresentation,  according  to  its  legal  meaning,  so  that  it  may 
be  kiiLtwii  whether  the  statements  of  a  party  in  any  particnlar  case 
bring  it  vvir,hin  tlie  operation  of  this  principle.  In  addition  to  its; 
effect  in  preventing  the  specific  performance  of  a  contract,  misrepre- 
sentation may  be  a  defense  to  an  action  at  law  on  the  contract,  tlie 
cause  of  an  action  at  law  to  recover  damages  for  the  deceit,  and  the 
basis  of  a  suit  in  equity  to  rescind  the  contract.  As  the  present, 
inquiry  is  wholly  concerned  with  the  first-mentioned  efi'ect  of  misrep- 
resentation in  connection  with  specific  performance,  no  reference 
whatever  will  be  made  to  the  others,  except  that  cases  involving  them, 
may  be  cited,  when  the  particular  rule  under  examination  is  the  same 
for  both  subjectSo 

Sec.  211.  A  misrepresentation,  when  analyzed,  consists  of  the  fol- 
lowing elements,  all  of  which  are  essential  to  its  full  legal  significa- 
tion :  1.  A  positive  statement  or  representation;  2,  must  be  made 
for  the  purpose  of  procuring  the  contract ;  3,  nmst  be  untrue ;  4,  the 
knowledge  a.nd  belief  of  the  party  making  it ;  5,  the  belief,  trust  and 
reliance  of  the  one  to  whom  it  is  made;  and  6,  its  materiality.  I 
shall  examine  these  elements  separately,  so  far  as  shall  be  necessary, 
in  order  to  ascertain  their  application  to,  and  effect  upon,  the  remedy 
of  specific  performance  ;  the  purpose  of  the  present  treatise  docs  not 
require  or  even  admit  an  exhaustive  discussion  of  the  legal  theory  of 
misrepresentations. 
Their  form. 

Sec  212.  I.  A  misrepresentation  must  be  an  affirmative  statement 
or  affirmation  of  some  fact,  in  contradistinction  to  a  concealment, 
omission  or  failure  to  disclose.  In  the  great  majority  of  instances 
it  is  made  by  language  written  or  spoken ;  but  it  may  consist  of 
acts,  when,  by  their  means,  it  is  intended  to  convey  the  impres- 
sion, or  to  produce  the    conviction   that   some   fact   exists.(l)     The 

some  particular  terms  of  the  agreement — if  made  with  knowledg-e  of  its  falsity  or 
such  ignorance  of  the  truth  as  amounts  in  its  legal  effects  to  a  knowledge  of  its 
falsity,  will  defeat  a  specific  performance  on  behalf  of  the  party  making  it.  The 
plaintiff  cannot,  in  such  a  case,  waive  the  portion  of  the  agreement  embi-aced 
within  his  misstatements,  and  claim  to  have  the  rest  of  it  enforceii.  The  objection 
gi-owing  out  of  his  conduct  is  personal  to  him  ;  he  must  come  into  a  court  of  equity 
"  with  clean  hands."  Lord  Clermont  v.  Tasburgh,  1  J.  &  W.  112,  120  ;  Cadnian 
V.  Horner.  18  Ves.  10  ;  Boynton  ■?>.  Hazelboom,  14  Allen,  107  ;  Thompson  v,  Todd, 
1  Peters  C.  C.  r:8x 

(1)  As  where  fraudulent  experiments  were  performed,  so  as  to  induce  a  party 
to  enter  into  a  contract  relating  to  a  patent-right,  Lovell  v.  Hicks,  2  Y.  &  V.  Ex. 
46;  see,  also,  Denny  t).  Hancock,  L.  R.  6  Oh.  1,  where  the  appearance  of  the 
grounds  so   misled    the  purchaser  as  to   their  boundaries,  that  the  contract  was 

304. 


292  SPECIFIC   PERFORMANCE    OF  COXTRACfS. 

statement  or  aifirmation  luii.st  be  of  a  fact.  It  i.s  soinetimcs,  nut 
very  iiu-orrectly,  said  ihat  a  representation  cannot  be  made  of  a  matter 
of  opinion.  Tlie  true  rule  i.s,  that  the  representation  cannot  itself  be 
the  mere  exi)ression  of  an  oiunion  lieid  by  the  i)arty  making- it,  but 
must  be  an  atHrmation  of  a  fact ;  but  the /very  fact  conccniii.u-  wliich 
the  statement  is  made,  may  be  an  opinion.  In  other  words,  the 
existence  of  an  opinion  may  be  a  fact  nuiterial  to  a  proposed  contiact ; 
and,  therefore,  a  statement  that  such  opinion  exists  becomes  an 
affirmation  of  a  material  fact,  and  if  untrue,  it  is  a  misrepresentation. 
In  all  surli  cases,  however,  tliere  must  be  the  positive  affirmation  that 
the  opinion  is  held  by  the  specified  person,  that  it  exists  as  a  fact, 
which  is  something  quite  different  frcmi  the  expression  of  an  opinion. 
The  purpose  for  vrhich  the  representation  is  made. 

Sec.  213.  II.  The  representation,  whatever  its  form,  mnst  be  made 
for  the  purpose  and  with  the  design  of  procuring  tlie  contract  to  be  made 
— of  inducing  the  other  party  to  enter  into  the  engagement.  It  must 
therefore  be,  of  necessity,  preliminary  to  the  actual  conclusion  of  the 
bargain,  and,  in  the  majority  of  instances,  it  is  made  during  and  forms  a 
part  of  the  negotiation.(l)  Such  being  the  object  of  a  representation, 
it  must  be  directly  connected  with  the  very  contract,  dealing  with  its 
subject-matter  or  other  terras,  and  not  be  confined  to  other  and  distinct 
relations,  transactions  or  matters  with  which  the  parties  are  concerned.  (2) 
In  order  that  a  statement  may  produce  the  effect  of  a  misrepresenta- 
tion and  be  fraudulent  within  the  legal  conception,  the  party  making 
it  need  not  have  any  malignant  feeling  towards  the  other,  nor  any 
desire  to  injure,  nor  need  he  be  actuated  by  any  corrupt  or  wicked 
motive  ;  for  the  law  looks  rather  at  the  relations  of  the  statement 
towards  the  real  facts,  and  the  results  which  will  naturally  flow  from 
it,  than  at  the  mental  condition,  temper  and  feelings  of  the  person 
who  makes  it. (3)  If,  therefore,  a  representation  made  prior  to  the 
agreement,  and  directly  relating  to  it,  is  of  such  a  character  that  it 

not  enforced.  This  was,  of  course,  a  mistake  of  his,  but  the  mistake  consistcul  of 
his  obtaining  from  the  appearance  an  impression  which  was  the  natural,  if  not 
necessary  one,  but  at  the  same  time  contrary  to  the  real  fact. 

(1)  Harris  v.  KemV)le,  1  Sim.  Ill,  122,  per  Sir  John  Leach.  There  may  be 
cases  where  the  rei)resentaiions  cannot  be  .'-aid  to  form  part  of  any  nei,'-otiation  or 
treaty  between  the  pai-ties.  As,  for  example,  prospectuses  issued  by  coni])aiiies, 
and  similar  publications,  isstied  generally  to  all  whom  it  may  concern,  aie  ^oine- 
times  false  reiiresentations,  inducing  persona  to  enter  into  contract.'^,  and  yet  they 
cannot,  with  accuracy,  lie  called  a  step  in  a  negotiation.    Wells  v.  Millott,  2:>  Wis.  64. 

(2)  Harris  ?).  Kemble,  1  Sim.  111.  128;  5  Bli.  (N.  S.)  730. 

(3)  See  Polhill  ?).  Walter,  3  B.  &  Ad.  114  ;  Gibson  v.  D'Este,  2  Y.  &  C.  C.  CI 
542 ;  Wilde  V.  Gibson,  1  H.  L.  Cas.  605. 

305 


MUST  BE  FREE   FROM  M/SKKPKESEATA'JIO.V.  293 

would  naturally  induce,  or  tend  to  induce,  any  ordinary  person  to 
enter  into  tlie  contract,  and  is  in  fact  followed  by  a  conclusion  of  the 
contract,  then  it  will  be  presumed  that  it  was  made  for  the  purpose 
and  with  the  design  of  inducing  the  other  party  to  enter  into  that 
agreement.  The  design  will  be  inferred  from  the  natural  and  neces- 
sary consequeTices.(l)  It  may  be  remarked  here,  that  this  requisite — 
the  purpose  to  bring  about  the  contract — exists  to  the  same  extent  in 
all  the  remedial  proceedings  which  may  be  based  upon  a  misrepresen- 
tation— in  both  actions  at  law,  in  a  suit  for  a  rescission,  as  well  as  in  a 
suit  for  a  specific  performance ;  so  that  tlie  decisions  made  in  each  of 
the  three  former  may  be  used  to  illustrate  the  latter. 

(1)  See  Torrance  v.  Bolton,  L.  R.  8  Ch.  118  ;  L.  R.  14  E<i.  124,  whoi-e  a  vendee  was 
misled  by  a  wrong  description  of  the  property  sold  at  auction.  The  description 
was  held  to  be  misleading ;  that  the  onus  was  on  the  vendor  t  j  show  that  the 
purchaser  was  not  misled ;  that  actual  fraud  was  not  necessary  to  set  aside  a 
contract  of  sale — it  is  enough  that  such  contract  is  unconscientious.  Aberaman 
Iron  Works  v.  Wickens,  L.  R.  4  Ch.  101,  reversing  L.  R.  5  Eq  485;  Leyland  v. 
lUingworth,  2  DeG.  F.  &  J.  248;  Taylor  u  Fleet,  1  Barb.  471.  Plaintiff  wished 
to  buy  a  farm,  and  particularly  wanted  one  which  was  "  early  "  in  its  pi'oductions ; 
he  was  ignorant  of  the  quality  of  all  the  land  in  the  neighborhood,  and  had  no 
means  of  ascertaining  except  by  information  from  others.  The  defendant — the 
vendor — knowing  plaintiff 's  special  wish  to  buy  an  early  farm,  and  knowing  that 
his  own  was  not  nearly  so  early  as  most  others  in  the  vicinity,  ia  a  negotiation 
with  plaintiff  for  the  sale  of  his  own  farm,  stated  that  "  there  was  no  eai-lier  land 
anywhere  about  there."  Plaintiff  relied  on  this  representation — made  the  pur- 
chase— and  as  soon  as  he  ascertained  the  true  chai-acter  of  the  land,  requested  the 
defendant  to  rescind,  which  request  was  refused.  Held,  the  representation  was 
a  sufficient  ground  on  which  to  set  aside  the  contract,  even  though  the  vendor  had 
no  intention  to  deceive  the  buyer.  The  discussions  of  the  judges  in  the  case  of 
National  Exchange  Co.  v.  Drew,  2  McQueen,  108,  are  full  and  very  instructive. 
A.  company,  which  was  actually  in  a  very  bad  financial  condition,  issued  very 
flattering  financial  reports  of  its  condition.  Just  after  the  last  of  these  reports, 
the  officers  of  the  company,  in  order  to  counteract  certain  unfavorable  rumors, 
and  to  prevent  the  price  of  its  stock  from  falling  in  the  market,  persuaded  the 
defendants  to  buy  more  stock  of  the  company,  and  pi*omised  that  if  they  would 
do  so  the  company  would  advance  the  necessary  funds  to  make  the  purchase, 
and  that  the  stock  should  be  held  until  it  could  be  sold  at  a  profit,  and  so  the 
defendants  would  not  have  to  pay  out  any  money.  Upon  these  representations 
9,nd  promises  the  defendants  entered  into  the  arrangement ;  the  stock  soon  became 
worthless  ;  the  company  sued  defendants  for  the  money  which  it  had  advanced  as 
for  a  loan  made  by  it  to  them  ;  the  defendants  set  up  the  comjiany's  fraud  in  the 
whole  transaction  as  a  defense.  The  company  replied  that  the  loan  by  it  to  the 
defendants  was  one  transaction,  and  the  purchase  of  stock  by  the  defendants  was 
another  and  distinct  one — the  misrepresentation,  if  any,  was  made  in  connection 
with  the  latter  alone,  and  did  not  affect  or  vitiate  the  loan.  The  House  of  Lords  sus- 
tained the  defense,  holding  that  the  loan  and  purchase  were  one  transaction  in 
any  view  of  it,  so  that  what  concerned  the  purchase  equally  affected  the  loan. 
See  cases  cited  infra,  under  head  of  Materiality,  §  227. 

306       ' 


294  SPECIFIC   PERFORMANCE    OF  CONTRACTS. 

The  falsity  of  the  statement. 

Sec.  214.  III.  The  statement  must  be  untrue,  or  elae  there  is  no 
•/nic<!-represeutatiou.  The  entire  doctrine  of  the  law  and  of  equity  is 
based  upon  the  assumption  that  the  representation  is  in  fact  not  true. 
This  is  the  premise  of  fact  which  is  assumed ;  it  is  not  susceptible  of 
any  limitation  or  exception ;  it  needs  11,0  discussion,  and  no  citation 
of  cases  in  its  support. 

The  knowledge  or  belief  of  the  party  making  the  statement. 
Sec.  2 1 5  IV.  It  is  with  reference  to  this  element  that  t iie  most  import- 
ant ditference  exists  between  the  nature  and  effects  of  a  misrepresenta- 
tion considered  as  the  foundation  of  an  action  or  defense  at  law,  of  a  suit 
in  equity  for  a  rescission,  or  of  a  defense  to  a  suit  for  a  specific  perfoi-m- 
ance.  This  difference,  stated  in  general  terms,  consists  in  the  greater 
amount  of  knowledge,  belief  or  intention  which  must  enter  into  the 
representation  when  it  is  the  basis  of  a  legal  action  or  defense,  and 
of  an  equity  suit  for  affirmative  relief,  than  is  required  when  it  is 
used  merely  to  defeat  the  specific  enforcement  of  a  contract.  It  is  of 
the  utmost  importance,  therefore,  to  discriminate  between  these  two 
uses,  and  to  remember  that  the  particular  doctriiies  established  by  the 
decisions  rendered  in  the  former  class  of  cases,  are  not  necessarily 
applicable  to  cases  which  fall  within  the  second  class.  The  indis- 
criminate citation  of  such  authorities,  simply  because  they  relate  to  the 
general  subject  of  fraudulent  representations,  has  done  much  to 
obscure  a  subject  which  in  itself  is  comparatively  simple  and  clear. 
The  special  rules  governing  the  action  for  deceit,  and  the  defense 
of  fraud  in  a  legal  action  on  a  contract,  and  to  a  partial  extent  the 
equity  action  of  rescission,  have,  undoubtedly,  become  refined,  and 
subject  to  many  limitations;  but  those  which  control  the  suit  for  a 
specific  performance  are  simple,  plain,  and  free  from  technicality 
or  intricacy.  It  will  be  necessary  to  state  the  general  doctrine 
"which  obtains  in  the  former  kinds  of  proceedings ;  but  I  shall  give 
it  very  briefly,  and  ordy  so  far  as  may  be  essential  for  the  better 
understanding  of  that  which  belongs  to  the  remedy  of  specific  per- 
formance. 

In  actions  at  la^v  and  suits  for  rescission. 

Sec.  216.  In  an  action  at  law  to  recover  damages  for  the  deceit,  and 
in  the  defense  to  a  legal  action  on  the  contract,  and  in  a  suit  in  equity 
for  a  rescission,  in  order  that  the  raisrei^resentation  shall  be  effective, 
it  is  essential  and  it  is  also  sufficient,  that  the  statement  is  untrue, 
and  that  the  party  when  making  it  did  not  believe  it  to  be  true,  fV>r 
then  tho  law  will  infer  that  it  was  made  with  a  fraudulent  intent.  It 
is  not  iiecessary  that  the  party  making  the  represPTitntion  should  have 

307 


MUST  BE   FREE   FROM  MISREPRESKNTATION.  295 

absolute  knowledge  that  it  is  false. (1)  Of  course,  if  he  has  this 
knowledge  the  case  is  stronger,  the  fraud  moi-e  striking,  9,nd  the 
invalidity  of  the  contract  more  palpable,  than  where  he  merely  has 
no  belief  in  the  truth  of  his  statement.  If,  however,  although  the 
statement  is  false,  the  party  making  it  actually  believes  it  to  be  true, 
there  is  no  sufficient  misrepresentation  on  which  to  maintain  an  action 
for  deceit.(2)  Again,  where  the  party  has  no  absolute  knowledge 
that  his  statement  is  false,  and  believes  upon  reasonable  grounds  that 
it  is  true — the  affirmation  not  being  made  in  such  utter  ignorance  of 
the  facts  that  he  is  taken  to  warrant  his  belief  in  its  truth — the 
untruth  of  the  representation  is  not  a  defense  to  a  legal  action  on  the 
contract.  (3) 

(1)  Taylor  v.  Ashton,  11  M  &  W.  401 ;  Smout  v.  Ilbery,  10  M.  &  W.  10,  pep 
Alderson,  B.  ;  Evans  v.  Edmonds,  13  C.  B.  777,  786,  i)er  Maulb,  J. :  "I  con- 
ceive that  if  a  man,  having  no  knowledge  whatever  on  the  subject,  takes  upon 
himself  to  represent  a  certain  state  of  facts  to  exist,  he  does  so  at  his  peril ;  and  if 
it  be  done  either  with  a  view  to  secure  some  benefit  to  himself,  or  to  deceive  a 
third  ])ei'Son,  he  is  in  law  guilty  of  a  fraud,  for  he  takes  upon  himself  to  warrant 
his  own  belief  of  the  truth  of  that  which  he  so  asserts."  These  decisions  were 
made  in  actions  at  law.  In  Torrance  v.  Bolton,  L.  R.  8  Ch.  118  ;  L.  R.  14  Eq. 
124,  property  was  sold  at  auction  which  was  described  by  the  vendors,  in  the 
preliminary  notice  of  sale,  as  "an  immediate,  absolute  reversion  of  a  freehold 
estate  falling  into  possession  on  the  death  of  a  laiiy  seventy  years  old."  At  the 
sale  itself  certain  conditions  were  read  by  the  auctioneer,  but  not  printed  nor 
circulated,  which  stated  that  the  pi"operty  was  subject  to  three  mortgages.  The 
plaintiff,  who  was  deaf,  did  not  hear  these  conditions,  and  did  not  know  he  was 
buying  only  an  equity  of  redemption,  but  pvirchased  on  the  faith  of  the  first  men- 
tioned description  in  the  notice  of  sale.  He  brings  this  suit  to  set  aside  the  sale. 
Held,  that  the  description  was  a  misrepresentation  and  misleading ;  that  the  onus 
was  on  the  vendor  to  show  that  the  vendee  was  not  misled.  Actual  fraud  is  not 
necessary  to  the  setting  aside  of  a  contract  for  the  sale  of  land ;  the  coui-t  will  set 
aside  a  contract  which  is  unconscientious.  Aberaman  Iron  Works  v.  Wickens,  L. 
R.  4  Ch.  100,  reversing  L.  R.  5  Eq.  485.  A  definite  statement  of  what  the  jiarty 
does  not  know  to  be  true,  if  false,  will  have  the  same  legal  effect  as  such  a  state-i 
ment  of  what  the  party  knew  to  be  untrue.  The  not  knowing  it  to  be  true,  is  as 
truly  the  essential  element  oi fraud,  as  the  actual  knowing  it  to  be  false.  See 
Fishei-  V.  Worrall,  5  W.  &  S.  483  ;  Tyson  v.  Passmore,  2  Bai-r,  122.  But  these 
questions  concerning  the  scienter  have  little  necessary  connection  with  specific 
pei'formance. 

(2)  Early  v.  Gari-ett,  9  B.  &  C.  928;  Freeman  v.  Baker,  5  B.  &  Ad.  797  ;  Moens 
V.  Heyworth,  10  M.  &  W.  147.  When  the  party  at  the  time  of  making  the  i-epre- 
sentation  believes  it  to  be  trvie,  and  is  innocent  of  any  wrongful  jjurpose,  but 
afterwards  discovers  its  falsity,  and  nevei-theless  does  not  undeceive  the  other 
party,  but  permits  him  to  continue  his  acts  as  though  the  statement  had  been  true, 
his  concealment  renders  the  representation  fraudulent  as  well  as  false,  and  is  a 
ground  for  affirmative  equitable  i-elief.      Reynell  v.  Sprye,  1  DeG.  M.  &  G.  660,  709. 

(3)  The  question  of  false  representation  as  a  defense  to  an  action  at  law  on  a 
contract  was  largely  dis.mssed  in  Cornfoot  v.  Fowke,  6M.  &  W.  358.  An  agent, 
without  intending  to  deceive,  made  a  statement  which  was  untrue,  but  which  he- 
did  not  know  to  be  so,  and  his  principal  knew  all  the  facts,  but  made  no  i-epre- 
eentation.     It  was  held,  after  much  discussion,  that  there  was  no  fraud,  an^ 

308 


296  SPECIFIC   PERFORMANCE   OF  CONTRACTS, 

In  suits  for  spacific  performance. 

Siic.  217.  Much  less  is  requisiLe  lo  prevent  the  specilic  eiirvircoiacut 
of  a  contract.  ISo  far  as  thi.s  clement  of  a  misrepresentation  is  con- 
cerned, it  is  siillicient  to  defeat  a  specific  performance,  that  tln^ 
statement  is  actually  nntrue  so  as  to  mislead  the  Y)arty  to  whom  it  is 
made  ;  the  jiarty  making  it  ii(>ed  not  kyo\Y  of  il.s  falsity,  nor  have  any 
intent  to  deceive  ;  iioi'  does  his  mere  belief  in  its  truth  make  any 
difference.  With  respect  to  its  effect  upon  the  specific  enforcement 
of  a  contract,  a  i)arty  making  a  statement  as  true,  for  the  purpose  of 
influencing  the  conduct  of  the  other  party,  is  bound  to  know  that  it  is 
true.(l)     In  maintaining  the  defense  to  a  suit  for  specific  performance, 

therefore,  no  defense.  The  ag-ent  himself  was  guilty  of  no  fi-aiid,  since  he  made 
the  statement  innocently,  and  the  knowledg-e  of  the  principal,  who  took  no  i)art  in 
the  i-epresentation,  could  not  be  imputed  to  him.  See,  also,  National  Exchange 
Co.  V.  Di-ew,  2  McQueen,  103;  Fuller  v.  Wilson,  3  Q.  B.  .58;  Wilson  v.  Fuller,  3 
Q.  B.  68.  In  Young'  v.  Covill,  8  Johns.  23,  it  was  said  of  an  action  for  deceit,  that 
"it  cannot  be  maintained  without  proving-  actual  fraud  in  the  defendant,  or  an 
intention  to  deceive  the  plaintilf  l)y  false  rejiresentation.  The  simjile  faf^t  of  mis- 
representation, unconnected  with  fraudulent  desig-n,  is  not  sufficient.  The  defend- 
ant made  no  representation  of  facts  within  his  knowledge.  *  *  *  'X'lie  advice 
was  rash  and  indiscreet,  but;  there  is  no  ground  from  which  to  infer  that  it  was 
deceitful.  Deceit  is  the  gist  of  the  action."  Benton  v.  Pratt,  2  Wend.  3S5  ; 
Gallagher  v.  Mason,  6  Cow.  346.  See  Joice  v.  Taylor,  6  Gill.  &  Johns.  54.  a  case 
of  rescission  on  the  ground  of  misrepresentation.  [In  Derry  v.  Peek,  14  App. 
Cas.  (H.  L  )  337,  the  rule  was  established  that  the  absence  of  i-easonable  grounds 
for  belief,  while  it  may  be  evidence  of  a  fraudulent  intent,  does  not  of  itself,  con- 
stitute such  fraud  as  will  justify  an  action  for  damages.  This  case  was  fcTllowed 
in  Glasier  v  Rolls,  42  Ch.  D.  436  ;  Angus  v.  Clifford  (1891),  2  Ch.  449  ;  Low  v. 
Bouverie,  (1891)  3  Ch.  82.] 

(1)  Ainslie  v.  Medlycott,  9  Ves.  13,  21  ;  Wall  v.  Stubbs,  1  Mad.  80.  Tlic  follow- 
ing are  examples  of  misrepresentations  which  have  been  alleged  as  a  detense  in 
suits  for  a  specific  performance.  In  Powell  v.  Elliott,  L.  R.  10  Ch.  4J4,  the 
vendors  sued  to  enforce  a  contract  for  the  sale  of  lai-ge  colliery  woi-ks.  The 
defendants  alleged  misrepresentations  by  the  vendors  as  to  the  value.  It  was 
found,  as  a  fact,  that  the  vendors  had  misrepresented  the  amount  of  stoi-es  con- 
sumed on  the  woi-ks,  and  consequently  had  lai-gely  overstated  the  income. 
Specific  performance  was  decreed  with  a  deduction  from  the  pi-ice  beai-ing  the 
same  ratio  to  the  price  ag-reed  that  the  excess  in  the  statement  of  income  bore  to 
the  whole  income  as  represented.  In  Harnett  v.  Baker,  L.  R.  20  Eii.  50,  which 
was  a  vendor's  suit,  the  contract  stipidated  tliat  the  title  to  the  Ijeneficial  owner- 
ship should  commence  with  the  will  of  one  A.  C,  and  the  purchaser  must  assume 
that  A.  C.  was,  at  Viis  death,  beneficially  owner  of  the  pi-ojierty  in  fee  simple,  free 
fi'om  all  incumbrances.  In  fact,  A.  C.  had  only  contracted  for  the  jiurchase  of  the 
pi'operty,  and  it  was  not  until  many  years  after  his  death  that  the  pi-ojicrty  was 
conveyed,  and  the  price  was  jiaid.  Held,  that  the  provision  of  the  contract  was? 
too  misleading  ;  the  purchaser  was  not  bomid  by  it,  and  a  specific  jxM-fonnance 
was  refused.  In  Ujiperton  ?i.  Nickolson,  J^.  R.  6  Ch.  43(5  ;  L.  R.  10  K(i.  22S,  also 
a  vendor's  suit,  the  land  was  described  in  the  contra<-.t  as  frcchoM.  It  tui-ned  out 
that  having  formerly  been  copyhold,  it  had  been  enfranchised  under  a  statute,  1)ut 
the  minerals  were  reserved  to  the  lord  of  the  manor.  This  was  held  a  fata', 
objection  to  the  tith?.     In  Whittemore  ?».  WhiUcniorc,  L.  M.  8  Kcj.  (;03.  defendant 

309 


MUST  BE    bliKE    FliOM   MISREPRESENTATION.  297 

the  knowledge,  belief,  or  intent  of  the  party  making  the  representa- 
tion is  wholly  immaterial,  and  the  question  is  nut  raised.  The  point 
upon  which  the  defense  turns,  is  the  fact  of  the  other  party  having 
been  misled  by  a  representation  calculated  to  mislead  him,  and  not 
the  existence  of  a  design  to  thus  mislead.  It  follows,  as  a  plain 
consequence  of  this  general  doctrine,  that  if  a  party  makes  a  misrep- 
resentation, whereby  another  is  induced  to  enter  into  an  agreement, 
he  cannot  escape  from  its  effects  by  alleging  his  forgetfulness  at  the 
time  of  the  actual  facts.(l)     Where  the  misrepresentation  does  not 

had  bought  land  at  an  auction,  which  was  desci-ibed  in  the  i^ai-ticulars  of  sale  as 
containing-  753  square  yards,  or  thereabouts  ;  and  the  contract  stipulated  that  if 
any  error,  mistake,  or  omission  in  the  description  should  be  discovei-ed,  it  should 
not  annul  the  sale,  nor  should  any  compensation  be  paid.  The  land,  in  fact,  con- 
tained only  573  square  yards.  Held,  that  the  above  stipulation  ajiplied  only  to 
small  errors  and  did  not  cover  so  large  a  deticiency,  and  in  g-ranting-  a  specific 
performance  the  vendee  w^as  entitled  to  a  deduction  from  the  price.  In  Leyland 
V.  lUingworth,  2  DeG.  F.  &  J.  248,  defendant  agreed  to  buy  a  warehouse  and  other 
property  in  a  city,  which  was  described  in  the  particulars  of  sale  as  "  well  supplied 
with  water."  It  was  found,  as  a  matter  of  fact,  that  from  the  situation  of  similar 
properties  in  the  same  place  this  would  naturally  mean,  supplied  with  water  by  a 
natural  supjjly,  like  a  well,  etc.  ;  in  fact,  the  water  was  supplied  by  public  water- 
woi'ks,  for  which  the  tenant  would  have  to  pay  about  $100  a  year  water  rent. 
Defendant  claimed  this  was  a  misdescription.  Held,  it  was,  per  L.  J.  Knight 
Bkdcb,  p.  2.52  :  "The  particulars  were  materially  inaccurate,  were  importantly 
otherwise  than  true,  thoug-h  I  do  not  impute  fraudulent  or  dishonest  intention  to 
any  one.  The  purchaser  says  that  he  is  consequently  entitled,  either  to  be  released 
from  his  bargain  or  to  have  compensation  for  the  misrepresentation,  and  in  this 
claim  I  think  him  right."  Per  L.  J.  Turner,  y>.  2.'J4  :  "  The  description  is  a  i-epresen- 
tation  of  a  fact,  and  the  true  question  is,  whether  it  was  a  fair  rejjresentation  of  the 
fact.  I  am  of  opinion  that  it  was  not ;  that  it  was  calculated  to  lead  the  purchaser 
to  believe,  as  I  am  satisfied,  upon  the  evidence,  that  he  did  believe  that  there  was 
a  supjily  upon  the  property  itself  "  See,  also.  Dyer  v.  Hargrave,  1 0  Ves.  505  ; 
Price  V.  Macaulay,  2  DeG.  M.  &  G.  339  ;  Denny  v.  Hancock,  L.  R.  6  Ch.  1.  In 
none  of  these  cases  was  there  the  slightest  suggestion  of  any  intention  to  deceive 
on  the  part  of  the  vendor  ;  nor  even  an  allegation  that  he  knew  of  the  wi'ong 
description.  The  question  of  his  knowledge,  belief,  or  intent,  was  wholly  imma- 
terial, and  was  not  raised,  because  the  decision  could  not  turn  upon  it.  It  is  the 
fact  of  the  other  party's  being  misled,  and  not  the  design  to  mislead  him,  which 
constitutes  the  defense.  Holmes'  Appeal,  77  Pa.  St.  50,  an  agi-eement  to  purchase 
a  farm  made  in  reliance  upon  the  vendor's  false  statement  that  the  neighborhood 
is  hoal'hful,  will  not  be  specifically  enforced  against  the  purchaser  ;  and  it  seems 
that  a  contract  to  purchase  a  farm  situated  in  a  neighborhood  subject  to  fever  and 
ague,  of  which  fact  the  vendee  was  ignorant,  but  the  vendor  was  well  informed, 
and  which  fact  the  vendor  did  not  disclose  to  the  purchaser,  will  not  be  specifi- 
cally enforced  against  the  purchaser,  even  thoTigh  no  false  representations  were 
made  to  him  by  the  vendor  ;  and  see,  also,  Swimm  ■?».  Bush,  23  Mich.  99. 

(1)  In  such  a  case,  a  vendoi-  having  made  a  misstatement  to  the  purchaser,  and 
alleging  that  he  did  not,  at  the  time,  recollect  the  fact.  Sir  "Wm.  Grant  said  of  this 
excuse  :  "The  plaintiff  cannot  dive  into  the  secret  recesses  of  his  heart,  so  as  to 

310 


298  SPECIFIC  PKRFOliMA.WK    Ob    CONTRACTS. 

extend  to  the  entire  scope  of  the  agreement,  or  even  to  r.ny  of  it^. 
mobt  imporlunt  parts,  but  relates  meivly  to  some  iutidental,  subordi- 
nate, ui  culiaieral  luature  of  it,  the  court,  instead  oi  lUnyiug'  uil  n.'lief 
to  the  plaintitt',  may  dii'ect  a  specific  performance,  wuli  au  abatement 
of  the  price,  or  other  form  of  compensatiun  to  tlje  defendaMt.(l) 
Although  au  untrue  and  misleading  statement  of  fact  is  all  that  is 
necessary  to  jnevent  the  enforcement  of  a  contract  in  equity,  yet  when 
the  misrepresentation  is  so  coupled  with  knowledge  or  fraudulent 
intent  as  to  be  a  sutiicient  ground  for  an  action  or  defense  at  law.  or 
for  a  suit  in  ec[uity,  to  rescind,  it  will  a  fortiori  defeat  the  remedy  of 
specific  performance. 

The  effect  of  the  representation  on  the  party  to  -whom  it  is 
made  ;  must  be  an  inducement  to  enter  into  the  contract. 

Sec.  "218.  V.  Another  element  of  a  misrepresentation,  alike  requisite 
in  every  species  of  remedy,  legal  or  equitable,  is,  that  it  must  be  relied 
upon  by  the  party  to  whom  it  was  made,  and  must  be  so  far  an  imme- 
diate cause  of  the  contract  that  without  it  the  agreement  in  question 
would  not  have  been  concluded.  Unless  an  untrue  statement  is 
believed  and  acted  upon,  it  occasions  no  legal  injury.  It  is  essential, 
therefore,  that  the  party  addressed  should  trust  the  representation, 
and  be  so  strongly  induced  by  it,  that,  judging  from  .the  ordinary 
habits  and  practices  of  men,  in  the  absence  of  it,  he  would  not  in  all 
reasonable  probability  have  entered  into  the  contract. (2) 

It  is  not  necessary  that  the  representation  should  be  the  sole  induce- 
ment ;  others  may  have  concurred  with  it  in  influencing  the  party ; 
but  still  it  must  be  so  cogent  in  its  effects,  that,  without  it,  the  agree- 
ment in  all  reasonable  probability  would  not  have  been  made. (3) 

know  whpther  he  did  or  did  not  recollect  the  fact,  and  it  is  no  excuse  to  pay  that 
he  did  not  recollect  it."  Burrows  v.  Lock,  10  Ves.  476  ;  and,  also,  see  Pi-ice  v. 
Macaulay,  2  DeG.  M.  &  G.  339 ;  Bacon  v.  Bronson,  7  Johns.  Ch.  194.  The  same 
is  true  when  the  suit  is  for  a  rescission,  and  the  defendant  has  untruly  stated 
something'  which  is  within  his  own  knowledge  ;  he  cannot  be  held  to  assert  that  he 
forgot  the  truth  when  he  niadH  the  statement. 

(1)  See  several  of  the  cases  cited  in  the  last  note  but  one,  under  §  217. 

(2)  It  is  certainly  incorrect  to  lay  down  this  rule,  as  it  is  often  found  both  in 
judicial  opinions  and  in  text  writers,  namely,  "  the  inducement  must  be  so  strong 
that  without  it  the  party  would  not  have  entered  into  the  contract."  It  is  impos- 
sible to  state  such  a  future  and  contingent  matter  with  absolute  certainty,  and  the 
most  that  can  be  said  with  truth  or  be  required,  in  order  to  formulate  a  practical 
rule  is,  that  in  all  reasonable  proliability,  judging  from  the  common  experience  of 
mankind,  the  party  would  not  have  concluded  the  agreement.  [See  the  subject 
of  this  and  the  following  sections  discussed  in  2  Pom.  Eq.  Jur.,  §§  890-807,  and 
cases  cited.] 

(3)  As  this  particular  element  of  a  misrejiresentation  must  exist,  whatever  be 
the  nature  an<l  form  of  the  judicial  proceeding,  whether  an  action  at  law  for 
deceit,  or  a  defense  to  an  action  at  law  upon  the  conti-.act,  or  a  suit  in  equity 
for  a   rescission,   or  a  defense  to  a  suit  in  equity  for  a  specific  performance, 

oil 


MUST  BE  FREE  FROM  MISREPRESENTATION.  299 

"When  he  is  justified  in  relying  upon  it,  and  when  not. 

iSEC.  219.  In  deteriiiiuiug  tht;  effect  of  a  reliance  upon  ie[)i'eseiita- 
tioiis  it  is  most  iinportaut  to  ascertain,  in  the  iirst  i)lace,  whetlier  the 
statement  was  snch  that  the  party  was  justified  in  relying  upon  it; 
or  such,  on  the  other  hand,  that  he  was  bound  to  inquire  and  examine 
into  its  correctness  himself.  There  is,  in  this  respect,  a  broad  dis- 
tinction between  statements  of  fact  which  really  form  a  part  of,  or 
are  essentially  connected  with,  the  substance  of  the  agreement,  and 
representations  which  are  mere  expressions  of  opinion,  hope,  or  expec- 
tation, or  are  mere  general  commendations.  Upon  statements  of  the 
first  kind,  and  especially  where  they  are  concerning  matters  which, 
from  their  nature  or  situation,  may  be  assumed  to  be  within  the  know- 
ledge or  under  the  power  of  the  party  making  the  representation, 
the  j)arty  to  whom  it  is  made  has  a  right  to  rely;  he  is  justified  in 
relying  upon  them,  and  in  the  absence  of  any  knowledge  of  his  own, 
or  of  any  facts  which  should  arouse  suspicion  and  cast  a  doubt  upon 
the  truth  of  the  statements,  he  is  not  bound  to  make  inquiries  and 
examination  for  himself.  It  does  not,  under  such  circumstances,  lie 
in  the  mouth  of  the  person  asserting  the  fact  to  object  or  complain 
because  the  other  took  him  at  his  word  ;  if  he  claims  that  the  other 
X)arty  was  not  misled,  he  is  bound  to  show  clearly  that  such  party  did 
know  the  real  facts.(l)     Where,  however,  the  representation  is  of  the 

the  decisions  made  in  the  first  three  kinds  of  actions  may  be  cited  to  illus- 
trate the  application  of  the  doctrine  to  the  last.  In  the  leading-  case  of  Atwood 
V.  Small,  6  CI.  &  Fin.  447,  which  was  a  suit  for  a  rescission.  Lord  Brougham 
thus  sums  up  the  doctrine  as  derived  from  the  prior  decisions:  "Now,  my 
lords,  what  infei'ence  do  I  draw  from  these  cases  'i  It  is  this  :  that  general 
fraudulent  conduct  signifies  nothing  ;  that  general  dishonesty  of  purpose  signifies 
nothing  ;  that  attempts  to  overreach  go  for  nothing,  unless  all  this  dishonesty  of 
purpose,  all  this  fraud,  all  this  intention  and  design  can  be  connected  with  the 
pai-ticular  transaction,  and  not  only  connected  with  the  jiarticular  transaction,  but 
must  be  made  to  be  the  very  ground  upon  which  this  transaction  took  place,  and 
must  have  given  rise  to  this  contract."  [See  Redgi-ave  v.  Hurd,  20  Ch.  D.  1,  in 
which  Attwood  v.  Small  is  considered.]  In  Taylor  ?\  Fleet,  1  Barb.  475,  another 
suit  for  a  rescission,  it  was  saitl :  *'  It  is  undoubtedly  ivxxe  that  to  avoid  a  con- 
tract on  the  ground  of  misrepresentation,  thei'e  must  not  only  be  a  misrepresenta- 
tion of  a  material  fact  constituting  the  basis  of  the  sale,  but  the  purchase  must 
have  Ijeen  made  upon  the  faith  and  credit  of  such  i-epresentation.  At  least  the 
purchaser  must  so  far  have  relied  on  them  as  that  he  would  not  have  made  the 
purchase  if  the  i-epresentations  had  not  been  made."  In  Addington  v.  Allen,  11 
Wend.  375,  an  action  based  on  the  deceit,  it  was  held  that  "  although  other  induce- 
ments besides  the  representations  may  have  ojierated  in  the  giving  credit,  it  is 
enough  if  the  vendor  is  moved  by  such  representations,  so  that  witfiout  them  the 
goods  would  not  have  been  parted  with." 

(1)  InLeyland  v.  lUingworth,  2  De  G.  F.  &  J.  248,  the  facts  of  which  are  given 
ante,  the  representation  was  held  to  have  been  of  this  kind,  and  that  the  pur^ 
chaser  had  a  right  to  rely  on  it  and  was  not  bound  to  inquii'e.     L.  J.  Turnbk, 

312 


SOO  SPECIFIC   PEliFORMANCK    OF   COyTh'ACTS. 

second  kind — where  it  consists  of  general  commendations,  or  mere 
expressions  of  opinion,  hope,  expectation  and  the  like — and  es[K>eially 
where  it  concerns  matters  which  cannot,  from  their  nature,  position,  or 
time,  be  supposed  to  be  within  the  knowledge  or  under  the  power  of 
the  party  making  the  statement,  the  party  to  whom  it  is  made  is  not 
justified  in  relying  upon  it  and  assuming  it  to  be  true;  he  is  bound 
to  make  inquiry  and  oxaminatioii  for  liiniscif  so  as  to  ascertain  the 
truth;  and,  in  the  absence  of  evidence,  it  will  be  i>resumed  tliat  he 
has  done  so,  and  acted  upon  the  results  of  his  own  inquiry  and  exam- 
ination. He  cannot  be  heard  to  claim  that  he  was  misled  by  the  state- 
ment in  defense  of  a  specific  performance. (1) 

p.,  253,  254,  said  :  "  If  the  question  had  been  whether  the  supply  of  water  was 
adequate  or  inadequate,  the  case  would  probably  have  fallen  within  the  authori- 
ties refei"i-ed  to  in  opposition  to  the  purchaser's  claim.  It  would  have  been  a 
question  of  opinion,  not  of  fact,  and  the  purchaser  would  have  been  put  upon 
inquiry.  But  there  is  no  such  question  in  this  case.  The  desci-iption  is  a  repre- 
sentation of  a  fact,"  etc.  To  the  same  effect,  see  Dyer  y.  Hargrave.  10  Ves.  505  ; 
Price  V.  Macaulay,  2  DeG.  M.  &  G.  339 ;  Martin  v.  Cotter,  3  Jo.  &  Lat.  49(5,  507  ; 
Wall  V.  Stubbs,  1  Mad.  80.  Alieraman  Iron  Works  v.  Wickens,  L.  R.  4  Ch.  100, 
reversing  L.  R.  5  Eq.  485,  is  a  very  instructive  case.  It  was  a  suit  by  a  vendee  to 
set  aside  a  sale  on  account  of  vendor's  misrepresentation  as  to  quantity  of  the  land. 
Held,  that  although  the  plaintiffs  might  have  been  able  to  have  ascertained  the 
real  quantity,  they  were  not  bound  to  do  so,  and  theconti-act  was  rescinded.  See, 
also.  Holmes'  Appeal,  77  Pa.  St.  50 ;  Swimn>  v.  Bush,  23  Mich.  99,  which  was  a 
suit  brought  by  the  vendee,  holds  that  a  misrepresentation  and  concealment  of 
material  facts  with  respect  to  the  value  and  other  features  of  the  land,  made  by 
vendee  during  the  negotiation  and  preventing  or  natui-ally  tending  to  prevent 
investigation  or  inquiiy  by  the  vendor,  who  was  himself  jjersonaliy  vniac(piainted 
with  the  land  in  question,  while  the  purchaser  had  full  knowledge  i-especting  it, 
will  prevent  the  vendee  from  obtaining  a  decree  for  a  specific  performance  against 
the  vendor.  It  may  be  laid  down  as  a  general  proposition  that  where  the  repre- 
sentation is  definite,  affecting  the  value  of  the  subject-matter  or  otiierwi.se  induc- 
ing the  party  addressed  to'  enter  into  the  contract,  and  it  turns  out  to  be  untrue — 
whether  actuaUrj  known  to  be  untrue  by  the  one  making  it  is  innnaterial — the 
party  misled,  especially  if  he  had  no  means  of  ascei-taining  the  truth  of  the  state- 
ments, can  on  this  account  successfully  resist  a  specific  pei-foi-mance  ;  if.  howevei', 
he  seeks  the  more  i-adical  remedy  of  a  rescission,  or  even  the  legal  i-emedy  of 
damages  in  an  action  for  deceit,  the  actual  knowledge  of  the  untruth,  or  what  is 
deemed  equivalent  thei-eto,  is  an  essential  element  of  the  misrepresentation.  See 
Lord  Brooke  v.  Rounthwaite,  5  Hare,  298  ;  Stewart  t\  Alliston,  1  Meriv.  20; 
Brealey  v.  Collins,  Younge,  317  ;  Lowndes  v.  Lane,  2  Cox,  H63  ;  Harris  t).  Kemble, 

1  Sim.  Ill ;  5  Bligh  (N.  S.),  730  ;  Cox  v.  Middleton,  2  Drew.  209  ;  Price  v.  Macaulay. 

2  DeG.  M.  &  G.  339  ;  Rawlins  t).  Wickham,  1  Giff.  355  ;  3  DeG.  &  J.  304  ;  Iliggin.s 
V.  Samels.  2  J.  &  H.  4(50  ;  Farebrother  v.  Gibson.  1  DeG.  &  J.  002  ;  Johnson  i\ 
Smart.  2  Giff.  151  ;  Cook  v  Waugh,  2  Giff.  201  ;  Boynton  v.  Hazleboom.  14  Allen, 
107 ;  Best  v.  Stowe,  2  Sandf.  Ch.  298  ;  Fisher  v.  Worrall,  5  W.  &  S.  4S3. 

(1)  Dyeri).  Hargrave.  sioprn  ;  Scott?)  Hanson,  1  Sim.  13  ;  1  R.  &  My.  128  ;  Trowt-r 
V.  Newcome,  3  Meriv.  704  ;  Fenton  v.   Browne,  14  Ves.  144  ;    Brealey  v.  Collin.s, 


3rusr  BR   FREE   FROM  MISREPRE." ENTATION.  301 

Same  ;  when  he  has  learned  the  truth,  or  has  had  the  means 
of  learning  it. 
Sec.  220.  Several  of  the  causes  which  raise  a  presumption  that 
representations  were  not  relied  upon  by  the  party  to  whom  they  were 
made,  and  \Yhich  therefore  destroy  their  efficacy  as  a  defense,  were 
summed  up  by  Lord  Langdale,  in  language  which  I  quote(l) :  "Cases 
have  frequently  occurred  in  which  upon  entering  into  contracts,  mis- 
representations made  by  one  party  have  not  been,  in  any  degree, 
relied  on  by  the  other  })arty.  If  the  party  to  wliom  the  representa- 
tions were  made  liimself  resorted  to  the  proper  means  of  verification, 
before  he  entered  into  the  contract,  it  may  appear  that  he  relied  upon 
the  result  of  his  own  investigation  and  inquiry,  and  not  upon  the 
representations  made  to  him  by  the  other  party.  Or,  if  the  means  of 
investigation  and  verification  be  at  hand,  and  the  attention  of  the 
party  receiving  the  representations  be  drawn  to  them,  the  circum- 
stances of  the  case  may  be  such  as  to  make  it  incumbent  on  a  court  of 

Younge,  817;  Brooke  v.  Roundthwaite,  5  Hai-e,  298;  Lowndes  v.  Lane,  2  Cox, 
363  ;  Abbott  v.  Sworder,  4  DeG.  &  Sm.  448  ;  Colby  v.  Gadsden,  34  Beav.  416.  As 
an  illustration,  in  Jenning-s  v.  Broughton,  17  Beav.  234  ;  5  DeG.  M.  &  G.  126,  it  was 
held  that  in  a  contract  for  the  sale  of  a  mine,  there  would  be  an  essential  differ- 
ence between  a  representation  of  what  was  actually  to  be  seen  or  had  been  seen 
at  the  works,  and  a  general  statement  of  its  expectations,  prospects  and  capaci- 
ties— the  lattei-  being  in  their  very  nature  contingent  and  speculative — and  res- 
pecting which  the  buyer  was  as  able  to  judge  as  the  seller.  In  Trower  v.  New- 
come,  su-pra,  an  advowsen  had  been  sold  at  auction,  the  written  particulars  describ- 
ing it  stating  that  "  a  voidance  of  the  preferment  was  likely  soon  to  occur,"  but 
not  speaking  of  the  then  present  incumbent.  At  the  sale  the  auctioneer  announced 
that  "  the  living  would  be  void  on  the  death  of  a  person  aged  82."  (It  must  have 
been  that  this  statement  was  made  without  authority  and  did  not  bind  the  ven- 
dor, for  otherwise  it  seems  to  be  a  representation  in  the  clearest  possible  manner 
of  a  most  material  fact).  In  truth,  the  then  incumbent  was  only  32  years  old. 
Sir  "Wm.  Grant  held  that  the  representation  made  by  the  particulars  was  so  vague 
and  general,  and  so  entirely  a  matter  of  speculation  or  opinion  that  the  purchaser 
was  only  put  on  the  inquiry  by  it,  and  could  not  claim  to  have  been  misled,  and 
he  decreed  a  specific  performance.  In  Scott  ii.  Hanson,  supra,  a  statement  that  the 
land  sold  *'  was  uncommonly  rich  water  meadow,"  was  only  a  general  commenda- 
tion which  should  not  prevent  a  specific  enforcement,  although  in  truth  it  was  very- 
poorly  watered.  In  Hume  v.  Pocock,  L.  R.  1  Ch.  379  ;  L.  R.  1  Eq.  423,  held,  that 
the  mere  assertion  by  the  vendor  that  he  has  a  good  title,  on  the  faith  of  which 
the  vendee  relies  without  investigating  the  title,  is  not  necessarily  such  a  misi-ep- 
resentation  as  will  preclude  the  vendor  from  enforcing  his  contract.  See  Jeffreys 
V.  Fairs,  L.  R.  4  Ch.  D.  448,  for  a  case  where  the  7-epresentation  made  without 
knowledge  or  any  possible  intent  to  mislead,  was  held  no  defense,  because  it 
was  of  such  a  nature  that  the  purchaser  took  his  chance.  [The  rule  of  caveat 
emjJtor  held  not  to  apply  to  misrepresentations  made  by  an  agent  in  breach  of 
confidence  imposed  on  him  by  his  pi-incipal.  Cheney  v.  Gleason,  12.')  Ma.ss.  166. 
It  applies  where  the  parties  have  equal  means  of  information,  Walsh  v.  Hall,  66 
N.  C.  233  ;  unless  the  pvir.-haser  han  bee.i  fraudulently  induced  to  forbear  inquiry. 
Vincent  ?).  Bei'ry,  46  I  )wa,  571.  See,  also,  Carmichael  t'.  Vandebur,  50  Iowa,  651  ; 
Miller  v.  Chetwood.  2  N.  J.  Eq.  199.  ] 

(1)  Clapham  d.  Shillito,  7  Beav.  146,  149,  150. 
314 


302  SPECIFIC   PEliFOKMAXCK    OF   CONTliACTS. 

justice  to  impute  to  hiui  a  kuowiedg-e  of  the  result,  which  upon  due 
inquiry  he  ought  to  have  obtained,  and  tlius  the  notion  of  reliance  on 
the  representations  made  to  hiui  may  be  excluded.  Again,  when  we 
are  endeavoring  to  adcortain  what  reliance  was  jilaced  on  i-epresenta- 
tions,  we  must  consider  them  with  reference  to  the  subject-matter  and 
the  relative  knowledge  of  the  parties.  If  the  subjt-ct  is  capable  of 
being  accurately  known,  and  one  party  is,  or  is  supposed  to  be,  pos- 
sessed of  accurate  knowledge,  and  the  oilier  is  entirely  ignorant,  and 
a  contract  is  entered  into  .after  rei)resentations  made  by  the  party  who 
knows,  or  is  supposed  to  know,  without  any  means  of  verification  being 
resorted  to  by  the  other,  it  may  well  enough  be  presumed  that  tlie 
ignorant  man  relied  on  the  statements  made  to  him  by  him  who  was 
supposed  to  be  better  informed ;  but  if  the  subject  is  in  its  nature 
uncertain — if  all  that  is  known  about  it  is  matter  of  inference  from 
something  else,  and  if  the  parties  making  and  receiving  representa- 
tions on  the  subject  have  ecpuil  knowledge  and  means  of  acquiring 
knowledge,  and  equal  skill,  it  is  not  easy  to  presume  that  representa- 
tions mad.e  by  one  would  have  much  or  any  intiuence  upon  the  other."(l) 
(Sec.  221.  In  this  extract  there  are  mentioned  the  following  cases,  in 
which  the  party  cannot  claim  to  have  been  misled  by  the  misrepresent- 
ation :  1.  When,  before  entering  into  the  contract,  he  actually  resorts 
to  the  proper  means  of  ascertaining  the  truth  and  verifying  the  state- 
ment. 2.  When,  having  the  opportunity  of  making  sucli  examination, 
he  is  charged  \\\[\\  the  knowledge  he  would  have  obtained,  if  he  had 
made  it.  8.  When  the  re})resentatipn  is  concerning  generalities, 
equally  within  the  knowledge  or  means  of  acquiring  knowledge  by 
both  parties.  4.  But  where  the  representation  is  concerning  facts,  of 
which  the  party  making  it  has,  or  is  supposed  to  have,  knowledge,  and 
the  other  party  has  no  such  advantage,  and  is  not  described  by  either 
of  the  first  two  cases,  then  it  will  be  presumed  that  he  relied  on  the 
statement;  he  is  justified  in  doing  so.  The  two  latter  cases  have 
been  discussed  in  preceding  paragraphs.  The  first  and  second  cases 
are  really  one  ;  they  depend  upon  tlie  same  principle,  and  the  only 
difference  between  them  is  one  of  proof — a  fact  being  distinctly  proved 
in  one,  which  is  irresistibly  iid'erred  in  the  other.  If,  after  a  repre- 
sentation of  fact,  no  nuitter  liow  positive,  the  party  receiving  it 
institutes  an  inquiry  for  himself,  has  recourse  to  the  i)roper  means  of 
obtaining  information,  and  actually  learns  the  real  facts,  the  claim 
that  lie  relied  upon  the  first  statement,  and  was  misled  by  it,  cannot 
be  admitted;  it  would  be  untrue  ;  and,  if  allowed  as  a  defense,  would 
furjush  a  ready  means  of  avoiding  all  contracts  with  which  a  party 
had  become  dissatisfied.  The  same  result  must  plainly  follow,  when, 
after  the  representation,  the  party  receiving  it  has  given  to  liim  a 
sufficient  op[»ortunity  of  examining  into  the  real  facts,  when  his  atten- 

(1)  [See,  also,  Wat.son  v.  Austin,  Gi  Miss.  4uO.  In  Redgravo  jv  Ilurd,  20  Ch.  D. 
1,  it  was  held  by  Fry,  J.,  that  if  the  defendant  had  an  opportunity  of  ascertain- 
ing' the  truth  of  rfepre.sentations  made  to  him  by  the  vendoi",  and  havinj;- somewhat, 
though  carelessly  and  inefficiently  examined  into  them,  he  nui.st  be  taken  not  to 
have  i-elieil  upon  them,  and  that  vt.'ndor  was  entitled  to  ])erformance.  I3ni  on 
apjieai,  held,  that  if  one;  jxm-sou  induces  anotlier  to  enter  into  a  contract  by 
material  inisrepiv-sentations,  if  is  no  dt^fense  to  an  action  to  ivscind  the  contract 
that  th«;  person  to  whom  the;  representation  was  made  had  the  means  of  discover- 
ing, and  might  with  reasonat)l<!  diligcnici;  h'ave  disc;ov'ered  that  it  was  unti-ue  , 
and  further,  that  cui-sory  and  incoinj)lete  investigation  by  the  dcfemlant  Wius  nq 
defense,  but  it  must  be  shown  either  that  he  had  knowh'dge  of  facts  which 
showe<l  th(^  misre])resentation  to  V)e  untrue,  or  that  he  stated  (sr  showe<l  by  hia 
conduct  that  hc'  did  not  i-ely  thereon.] 

315 


MUST  BE  FREE  FROM   M I SR EP R ESi ENTATION.  303 

tion  is  directed  to  the  source  of  iiiforiiiatioTi,  and  he  commences,  or 
purports  or  professes  to  commence  the  investigation.  The  plainest 
motives  and  grounds  of  convenience  and  expediency  demand  that,  in 
such  circumstances,  he  must  be  charged  w^ith  all  the  knowledge  which 
he  might  have  obtained  had  he  pursued  the  inquiry  with  care  and 
thoroughness  to  tlie  end.  He  cannot  be  heard  to  allege  that  he  did 
not  learn  the  truth;  he  cannot  claim  to  have  been  misled.(l)     The 

(1)  In  accordance  with  the  doctrine  stated  in  the  first  branch  of  the  above 
proposition,  Lord  Holt  made  the  following  remarks  in  deciding  an  action  for 
deceit,  the  principle  being  the  same  in  all  forms  of  judicial  proceedings  based 
upon  misrepresentation.  Lysney  v.  Selby,  2  Ld.  Raym.  1118,  1120 :  "  If  the 
vendor  gives  in  his  particular  of  the  rents,  and  the  vendee  says  he  will  trust  him, 
and  inquire  no  further,  but  rely  on  his  particular,  then,  if  the  particular  be  false, 
an  action  will  lie  ;  but  if  the  vendee  will  go  and  inquire  further  what  the  rents 
are,  then  it  seems  unreasonable  he  should  have  any  action,  though  the  particular 
be  false,  because  he  did  not  rely  on  the  particular."  The  great  case  of  Small  v. 
Attwood,  6  CI.  &  Fin.  232,  is  an  admirable  illustration  of  the  second  branch  of 
the  proposition,  and  was  finally  decided  in  the  House  of  Lords,  by  an  a^jplication 
of  its  doctrine.  Attwood  had  bargained  to  sell  his  works,  and  had  made  repre- 
sentations in  i-egard  to  them,  and  the  matter  claimed  in  the  case  was  the  falsity  of 
these  statements.  But  during  the  negotiations,  the  vendee  had  sent  a  committee  to 
the  works  for  the  express  purpose  of  examining  into  the  truth  of  the  statements.  As 
a  matter  of  fact,  they  made  a  very  superficial  and  incomplete  examination,  and 
did  not  discover  all  the  truth  ;  but  they  had  the  opportunity  to  make  a  thorough 
investigation  ;  they  were  engaged  in  the  same  business,  and  wei-e,  therefore, 
experts  ;  they  were  satisfied  with  what  they  saw,  and  reported  favorably,  and 
the  contract  was  concludecL  On  a  suit  for  a  rescission  of  the  agreement,  the  House 
of  Lords  held  that  the  vendees,  by  their  own  acts,  had  cut  oft"  any  claim  to  being 
misled,  and  must  be  charged  with  the  full  knowledge  which  they  might  have 
obtained.  If  a  purchaser  chooses  to  judge  for  himself,  and  does  not  thoroughly 
use  all  the  opportunities  and  sources  of  information  oyten.  or  offej-ed  to  him,  he 
cannot  be  permitted  to  set  up  his  own  carelessness  or  imprudence,  and  claim  to 
have  been  misled.  Another  important  case,  illustrating  the  same  doctrine,  is 
Jennings  v.  Broughton,  17  Beav.  234,  5  DeG.  M.  &  G.  120.  Plaintiff  had  bought 
shares  in  a  mine,  certain  statements  as  to  the  mine  having  been  made  by  the  ven- 
dor. The  suit  was  brought  to  rescind  the  sale,  on  the  ground  that  these  state- 
ments were  untrue.  The  vendee  had  visited  the  mine  before  concluding  the  bar- 
gain to  look  for  himself;  the  statements  were  concerning  matters  which  he  might 
have  found  out  during  his  investigation,  and  it  was  held  by  the  M.  R.,  and  on 
appeal  among  other  grounds,  that  he  must  be  taken  to  have  ascertained  the  truth, 
and  could  not  claim  to  have  been  misled  by  the  representations.  Lowndes  •». 
Lane,  2  Cox,  363,  is  another  illustrative  case.  A  purchaser  had  bought  property 
consisting  partly  of  woods,  on  the  representation  that  they  had  yielded  from  tim- 
ber cut  and  sold  from  them  two  hundred  and  fifty  pounds  a  year  on  the  aver- 
age for  fifteen  years.  He  claimed  that  this  representation  was  ])ractically  false 
and  really  misleading — not  because  the  woods  had  not,  in  fact,  yielded  that  sum, 
but  because  they  had  not  been  used  in  a  pi-oner  manner,  and  according  to  ordi- 
nary, fair  husbandry,  and  if  so  used  thev  would  not  have  produced  nearly  so 
much.  This  objection  would  probably  be  fatal  in  England,  where  woodland  is 
816 


304  Sl'KCIhlC   /'A'/.'/'OA'.l/.l.vr/i,'    oh    C().\JJi'.lC IS. 

ground  of  this  lattor  riil(^  is  tlio  prat'tical  innxtssihility,  in  any  Jii<licial 
proceediuir,  of  ascertaining'  exactly  liow  much  knowledge  the  party 
actually  obtained  froui  his  inquiry,  and  tlie  opportunity  which  a  con- 
trary rule  would  give  to  a  purchaser  or  other  contractor  of  repudia.iug 
an  agreement  fairly  entered  into,  with  which  i  <;  had  become  di.3- 
satisiied. 

tjEv.  222.  In  accordance  with  this  principle,  if  the  party  to  whom  a 
misrepresentation  has  been  made,  after  having  ascertained  the  rea  I  fad 
of  the  case,  and  thus  discovered  the  nutruth  of  the  statements,  goes  on 
acting  in  pursuance  of  the  contract,  treats  the  proj)erty  acquired  under 
i:  t  s  his  own,  or  otherwise  conducts  himself  with  respect  to  it  as. 
though  it  were  a  subsisting  and  binding  engagement,  he  thereby 
w-iives  the  benefit  of  the  misrepresentations,  and  cannot  allege  tlieni 
a^  a  ground  either  for  rescinding  or  resisting  enforcement  of  the  agree-- 
mcnt.  In  other  words,  the  party  who  has  been  misled  is  required,  as 
soon  as  he  learns  the  truth  and  discovers  the  falsity  of  the  state- 
ments on  which  he  relied,  with  all  reasonable  diligence  to  disafiirm 
the  contract,  and  give  the  other  party  an  opportunity  of  rescinding  it, 
and  of  restoring  both  of  them  to  their  original  position.  The  party 
deceived  is  not  allowed  to  go  on  deriving  all  possible  benefit  from  the^ 
transaction,  and  then  claim  to  be  relieved  from  his  own  obligations  by 
a  rescission  or  a  refusal  to  execute.  For  example,  if  a  lessee,  after  dis- 
covering the  untruth  of  representations,  continues  to  work  mines  which 
he  had  leased  ;  or  a  vendee  continues  to  use  the  land  purchased  as  his 
own.(l) 
Same  ;  \vhen  the  falsity  is  open  and  palpable. 

Sec.  22o.    The  princifile  stated  in  the  la>t  paragraph  but  one,  is 
also  applied  under  a  slightly  different  condition  of  circumstances.    If 

exceedingly  vahiable,  and  where  the  mode  of  using'  it  is  guided  by  many  strict 
rules  of  practice  and  of  law  But,  as  a  fact,  befoi-e  concluding  the  contract,  a 
liaper  was  delivered  to  the  purchaser  and  kept  in  his  possession,  which,  if  exam- 
ined, would  have  shown  him  conclusively  that  the  woods  had  not  been  used  in 
this  ordinai\v  manner,  but  that  the  timber  had  been  iniequally  and  extravagantly 
cut  He  was  held  chargeable  with  the  knowledge  which  he  might  anil  ought  to 
have  obtained,  and  so  was  not  misled,  [see,  also,  Wai-ner  v  Daniels,  1  Wood  & 
M  00:  Watson  v  Austin,  ii'.i  Miss.  4(39;  Daniels.  Mitchell,  1  Story,  172,  Hall  v. 
Thnmiison,  1  Sm    &  M    443  ] 

(1)  Vin^ers  ?i  Pike.  8  CI  &  Fin.  .")()2,  650,  jier  Loi-d  Cotteniiam.  In  Whitney  ti 
Al'airc,  4  Denio,  5.^54.  it  was  f/eld,  that  where  a  party  to  an  agreement  di.><covei>i 
the  fraud  of  the  other  subsequently  to  making  the  contract,  but  before  its  j^er- 
forma.nce.  and  with  such  knowhnlge,  goes  on  and  pei-forma  on  his  )  art,  he  is 
thereby  prevented  from  rescinding  the  agreement,  or  recovering  back  the  con- 
sideration, but  is  not  cut  off  from  recovering  damages  for  the  deceit.  Vooi-hees  v. 
De  Merer. '2  Barb.  S7  ;  Woodcock  r  Bennett,  I  Tow.  711  :  Masson's  Aiipeal,  20  P  F 
Smith. '2r..  20  :  Anthonv  )>  Leftwich.  3  Rand.  2r)S  ;  Slaughter?'.  Tiudle.  1  Lift  S.'iS  ; 
[s.  c  13  Wall  379  ;]  McCorkle  v.  Brown,  9  Sm.  &  Mar.  Kw  ;  Gibbs  n  Clianuion,  3 
Ohio,  33.J  ;  Piatt  ^v  Carroll,  8  Cranch,  471  ;  [Thweatew.  McLeod,  56  Ala.  375.] 

317 


JirST  BE  FREE    FROM  MISREPRESENTATION.  305 

the  party  receiving  a  misrepresentation  is,  at  the  time  when  it  is  made, 
either  from  knowledge  acquired  previously,  or  from  information 
obtained  at  that  very  moment,  fully  aware  of  the  truth,  acquainted 
with  the  facts  as  they  really  are,  he  cannot  claim  to  be  misled,  and 
<;annot  disaffirm  or  defeat  the  agreement  on  the  ground  that  it  was 
jtrocured  by  means  of  the  false  statements.  The  case  of  patent 
defects  is  merely  an  application  of  this  equitable  doctrine.  If,  in  a 
contract  of  sale  or  leasing,  representations  are  made  by  the  vendor 
concerning  some  incidents,  qualities,  or  attributes  of  the  subject- 
matter  which  are  open  and  visible,  so  that  the  falsity  of  the  statements 
are  patent  to  any  ordinary  observer,  and  it  is  made  to  appear  that  the 
purchaser,  at  or  shortly  before  the  time  of  concluding  the  contract, 
had  seen  the  thing  itself  which  constitutes  the  subject-matter,  then  a 
knowledge  of  the  facts  is  chargeable  upon  the  purchaser;  he  is 
assumed  to  have  made  the  agreement  knowingly,  and  cannot  allege 
that  he  was  misled  by  the  false  representations.  This  special  rule 
requires  that  the  thing  concerning  which  the  statements  are  made, 
should  be  seen  by  the  purchaser,  and  that  the  defects  should  be 
plainly  open  and  patent  to  any  ordinary  observer  ;  that  no  means 
should  be  used  to  conceal  them,  or  to  divert  the  buyer's  attention  from 
them.(l) 

(1)  Dyer  v.  Hargrave,  10  Ves.  505,  per  Sir  Wm.  Grant,  is  the  leading  case.  A. 
farm  sold  was  described  in  the  contract  as  "all  lying  within  a  ring  fence,"  which 
was  utterly  untrue.  The  purchaser,  however,  was  clearly  proved  to  have 
always  lived  in  the  immediate  neighboi-hood,  to  have  been  familiar  with  the  farm, 
and  to  have  seen  it  just  before  making  the  contract.  He  was  held  to  have 
known  that  the  land  was  not  enclosed  by  a  ring  fence,  and  not  to  have 
been  misled  by  the  statement,  and  specific  performance  was  enforced.  la 
Bowles  V.  Round,  5  Ves.  508,  per  Lord  Rosslyn,  a  meadow  was  bought, 
.around  which  was  a  road,  and  across  which  was  a  way,  and  these  facts 
were  not  mentioned  in  the  description  contained  in  the  contract ;  but  as 
those  matters  were  plainly  visible  to  the  most  casual  observer,  and  as  the  vendee 
had  seen  the  land,  his  claim  to  have  been  misled  by  the  description  was  over- 
ruled. See,  also,  Pope  v.  Garland,  4  Y.  &  C.  Ex.  394.  That  the  defects  which 
i-ender  the  i-epresentation  false,  must  be  plainly  open,  so  that  their  exist- 
ence will  be  perceived  and  known  by  any  ordinary  observer,  is  illustrated 
by  Shackleton  v.  Sutcliffe,  1  DeG.  &  Sm.  609.  A  piece  of  land  was  pur- 
chased which  was  adjoining  to  another  piece  which  was  on  a  lower 
level.  On  the  upper  land  was  a  spring,  and  on  the  lower  land  were  certain 
wells  which  were  connected  with  the  spring  by  gutters,  through  which  the 
water  ran  from  the  spring  to  the  wells.  It  turned  out — a  fact  unknown  to  the 
purchaser  when  he  made  the  contract — that  the  upper  land  was  subjected  to  an 
•  easement  in  favor  of  the  lower  tenement,  by  which  the  owner  of  the  latter  was 
entitled  to  a  water  supply  from  the  sjiring,  and  to  enter  upon  the  upper  land,  and 
.make,  maintain  and  clear  out  the  conduits  or  gutters,  etc. — on  the  whole  a  very 
318 


306  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

Same  ;    his  knowledge  of  the  truth  must  be  clearly  proved, 
and  will  not  be  presumed. 

Sec.  224.  The  piiin'ii»le  auuouuced  in  the  three  preceding  para- 
^■aphs  is  to  be  taken,  however,  with  the  following  most  important 
limitation,  or,  rather,  qiialificalion.  Where  a  representation  is  made 
of  facts  whieli  are  or  may  be  a?<sumed  to  'be  within  th(^  knowledge  of 
the  party  making  it,  the  knowledge  of  the  receiving  jiarty  concern- 
ing the  real  facts,  which  shall  prevent  his  relying  on  and  Iteing  misled 
by  it,  and  which  shall  thus  obviate  its  effects  upon  the  validity  of  the 
agreement,  must  be  clearly  and  conclusively  established  by  the  evi- 
dence. The  mere  existence  of  opportunities  for  examination,  or  sources 
of  information,  is  not  sufficient,  even  though  by  means  of  these  oppor- 
tunities and  sources,  in  the  absence  of  any  representation  at  all,  a 
constructive  notice  to  the  party  would  be  inferred,  of  a  condition  of 
fact  contrary  to  that  stated  by  the  representation ;  the  doctrine  of 
constructive  notice  does  not  apply  where  there  has  been  such  a  repre- 
sentation of  fact.(l)  If  a  vendor  claims  that  the  invalidating  effects 
of  his  misrepresentations  are  obviated,  that  the  purchaser  was  not 
misled  by  them,  either  because  they  were  concerning  patent  defects 
in  the  subject-matter,  or  because  he  was  from  the  outset  acquduted 
with  the  real  facts,  or  because  he  had  made  inquiry  and  thereby 
ascertained  the  truth,  the  qualification  above  mentioned  plainly 
applies ;  it  is  plainly  incumbent  on  the  vendor  to  prove  the  alleged 
knowledge  of  the  purchaser  by  clear  and  positive  evidence,  and  not  to 
leave  it  a  matter  of  mere  inference  or  implication;  an  opportunity  or 
means  of  obtaining  the  knowledge  is  not  enough. (2)    The  qualification 

substantial  burden  upon  the  land  bought.  The  vendee  set  up  this  defect  as  an 
objection  to  completing  his  purchase.  It  was  proved  in  answer  liy  the  plaintiff, 
that  defendant — the  vendee — was  well  acquainted  with  the  premises,  had  fre- 
quently, on  passing  along  the  road,  seen  the  wells  on  the  lower  tenement  and  the 
conduits  connecting  them  with  the  springs,  and  was  on  the  land  itself  the  veiy 
morning  of  the  sale.  But  V.  C.  Knight  Bkuck,  without  entering  into  the  reasons 
for  his  decision,  held  that  the  vendee  had  not  a  suthcient  amount  of  knowledge  of 
the  true  facts  to  prevent  him  from  making  the  objection.  It  may  be  added,  that 
the  real  objection  was  the  right  of  the  lower  owner  to  use  the  upper  land,  to 
draw  water  and  to  enter  on  it  from  time  to  time,  etc.  Although  the  vendee  h.ad  seen 
the  wells  and  conduits,  this  did  not  necessanly  inform  him  of  the  existence  of 
any  such  right — in  other  words,  the  defect  was  not  2-'«^^raf>  ^ut  was  latent. 
See,  also.  Grant  v.  Munt,  Coop.  173. 

(1)  Di-ysdale  v.  Mace,  2  Sm.  &  Gif  225,  230. 

(2)  The  vendor  "  must  show  Very  clearly  that  the  purchaser  knew  that  to  be 
untrue  which  was  represented  to  him  as  true  ;  for  no  man  can  be  heard  to  say  that 
he  is  to  be  assumed  not  to  have  spoken  the  truth."  Price  v.  Macaulay,  2  De(i.  M. 
.&  G.  346,  per  Knight  Bruck.  L.  J.  ;  and  see,  Wilson  v.  Shoit,  6  Hare,  8G6,  378  ; 
Dyer  v.  Hargrave,  10  Ves.  505  ;  Higgins  v.  Samels,  2  Johns.  &  H.  460  ;  Haniett  v. 
Baker.  L.  R.  20  Eq.  50. 

319 


MUST  BE  {REE   FROM   MlSREFRESENTATION.  307 

no  less  applies  to  the  case  mentioned  in  section  221,  where  the  party- 
receiving  a  representation  has  given  to  hiui  an  opportunity  of  examin- 
ing into  the  real  facts,  or  where  his  attention  is  directed  to  the  sources 
of  information.  The  mere  opportunity,  or  the  means  of  investigation, 
are  not  sufficient.  Undoubtedly,  they  nught  or  would,  had  there  been 
no  representation,  have  put  the  party  upon  the  inquiry,  and  would, 
therefore,  amount  in  law  to  a  constructive  notice  of  Ihe  facts  which 
might  have  been  learned  by  such  inquiry ;  but  the  positive  represen- 
tation of  a  fact  cannot  be  counteracted  by  such  implication.  It  must 
be  shown  that  the  party  proceeded,  in  some  measure,  to  avail  himself 
of  the  opportunity;  that  he  took  some  steps  in  making  an  independent 
investigation,  so  that,  although  his  examination  might  not  have  been 
thorough,  complete,  and  successful,  yet  he  must  be  charged  with  the 
knowledge  he  would  have  acquired  by  means  of  a  complete  investi- 
gation. In  other  words,  it  must  appear,  that  through  the  opportunity 
and  means  of  inquiry  he  received  some  information  concerning  the 
actual  facts,  so  that,  from  considerations  of  expediency,  he  could  not 
be  allowed  to  allege  his  failure  to  obtain  all  the  knowledge  which  he 
might  have  acquired. (1)    There  is  no  contradiction  here.    The  question 

(1)  Price  V.  Macaulay,  2  DeG.  M.  &  G.  389  ;  Gibson  v.  D'Este,  2  Y.  &  C.  C.  C. 
542,  572.  The  case  of  Small  v.  Attwood,  cited  swpra,  well  illustrates  this  position. 
The  vendors  of  the  works  made  certain  positive  statements  concerning  it.  The 
mere  fact  that  the  vendees  could  have  visited  the  works,  and  by  a  personal 
examination  have  ascertained  all  the  facts,  foi*  themselves,  would  not  lessen  the 
effect  of  this  representation.  Even  had  the  vendors  invited  the  purchasers  to 
come — given  them  an  exjiress  opportunity  to  investigate — dii-ected  their  attention 
to  this  means  of  veritication,  etc. — this  would  not  have  altered  the  result.  The 
vendees  would  have  had  a  right  to  say,  no,  you  have  made  a  statement  concern- 
ing an  existing  condition  of  fact  which  is  all  within  your  own  knowledge — true, 
we  can  come  and  verify  this  statement  for  ourselves,  but  we  are  willing  to  rely  on 
your  I'epresentation  and  complete  the  purchase.  Had  they  done  so ,  they  would 
have  been  justified  in  doing  it,  and  could  have  rescinded  the  contract.  But  they 
did  not  do  so.  They  acted 'on  the  opportunity;  they  availed  themselves  of  the 
means  ;  they  took  some  steps  in  making  an  investigation  ;  and  thus  some  infor- 
mation as  to  the  true  condition  of  matters  was  communicated  to  their  minds.  That 
the  investigation  was  not  thorough,  and  the  knowledge  obtained  perfect,  was  their 
own  faidt  ;  what  it  was,  they  relied  on  it  and  not  on  the  representation.  The  case 
of  Cox  V.  Middleton,  2  Drew.  209.  is  also  a  good  illustration.  A  vendor,  in  negoti- 
ating the  sale  of  a  house,  stated  that  it  was  '*  substantially  and  well  built,"  which 
was  untrue.  Although  the  vendee  could  very  easily  have  inspected  the  house, 
and  examined  it  for  himself  whether  it  was  well  or  poorly  built,  he  was  not 
obliged  to  do  so,  and  did  not ;  and  it  was  held,  that  this  opportunity  of  his  did  not 
impair  the  eff"ect  of  the  misi-epresentation,  and  a  specific  performance  was  refused. 
It  is  also  held  in  sevei-al  cases,  that  where  a  vendor  makes  untrue  statements 
respecting  a  lease — respecting  its  provisions  and  covenants — although  the  law 
would  charge  the  vendee  with  constructive  notice  of  what  these  covenants,  etc., 

320 


308  SPECIFIC  PERFORMANCK    OF  CONTRACTS. 

is,  did  the  party — purchaser,  generally — rely  on  the  representation, 
or  on  his  own  knowledge  t*  To  obviate  tlie  ettect  of  the  representation, 
it  must  be  clearly  and  conclusively  shown  that  lie  relied  on  hi^  (iwn 
knuwtei.hje.  This  the  general  doctrine  and  the  qualilication  both 
demand.  Jiut  neither  of  them  require  that  this  knowledge  be  perfect, 
complete,  accurate.  Where  there  is  an  opportunity,  or  means  of 
examination,  the  party  may  decline  to  use  it,  for  he  has  a  right  to 
rely  on  the  representation  of  fact,  and  to  remain  personally  in  igno- 
rance. If,  however,  he  takes  steps  in  an  investigation  and  thus 
obtains  some  independent  knowledge,  and  afterwards  concludes  the 
agreement,  he  must  be  assumed  to  have  concluded  it  upon  the  strength 
of  that  acquired  know'ledge,  however  partial  and  deceptive,  and  not 
upon  the  representation.  Where,  however,  there  is  no  investigation 
made  after  the  representation,  in  order  to  test  it,  but  the  vendor  claims 
that  his  statements  have  not  misled,  because  the  defects  were  patent, 
or  because  the  buyer  was,  from  the  outset,  acquainted  with  all  the 
facts ;  there  it  is  the  completeness  and  accuracy  of  tlie  purchaser's 
knowledge  alone  which  counteracts  the  effect  of.  the  representation 
and  shows  that  it  was  not  relied  u^ion  and  did  not  mislead  ;  in  such 
case,  therefore,  it  nuist  be  shown  that  the  purchaser  s  knowledge  of 
all  the  material  facts,  covered  by  the  misrepresentation,  was  full, 
accurate,  and  perfect.  The  vital  question  in  each  case,  however,  is, 
did  the  party  receiving  the  representation  rely  upon  it,  in  concluding 
the  agreement,  or  did  he  rely  upon  his  own  knowledge  ? 

Sec.  225.  This  rule  that  some  independent  hioioleclge  of  the  true 
facts  must  be  brought  home  to  the  party  receiving  such  a  representa- 
tion, in  order  to  counteract  its  effects  in  misleading  him,  and  to  pre- 
vent his  reliance  upon  it,  is  of  wide,  of  general  application.  Nothing 
done  by  the  party  making  the  statement,  and  no  extrinsic  circum- 
stances will  avail,  unless  they  clearly  lead  to  the  conclusion  that  the 
contract  was  concluded  upon  the  strength  of  information,  or  substan- 
tial grounds  for  forming  a  judgment  other  than  the  representation 
itself.  A  representation  of  fact,  such  as  has  been  assumed  througli- 
out  this  entire  discussion,  cannot  be  obviated  by  any  general  state- 
ments of  the  party  making  it  or  by  any  extrinsic  circumstances  which 
merely  admit  of  or  warrant  an  inference  contrary  to  or  in  conflict 

are,  yet  such  notice  does  not  obviate  the  effects  of  the  false  statemeuls— the  repre- 
sentation oven-ides  what  would  otherwise  be  taken  at  Uiw  as  a  knowledge,  on  the 
part  of  the  purcliasei-,  and  he  can  take  advantage  of  it  as  against  tlio  \endor. 
Van  X).  Corpe,  3  My.  k.  K.  120'.) ;  Flight  v.  Bai-lon,  3  My.  k.  K.  282 ;  Voi)ii  v.  Gar- 
land, 4  Y.  &  C.  Ex.  394,  401.  [See,  also,  Smith  v.  Land  and  House  Property 
Corporation,  28  Ch.  D.  7.] 

321 


MUST  BE   FREE    FROM   MISRERRESEKTATION.  809 

"with  the  representation,  even  though  of  themselves  such  statements 
or  such  circumstances  might  be  suliiciout  to  put  the  other  i)arty  upon 
the  inquiry.  This  is  simply  another  application  of  the  principle  that 
the  right  of  a  party  receiving  a  representation  to  rely  upon  it,  cannot 
be  taken  away  or  interfered  with  by  inference  or  implication. (1) 
"Where,  therefore,  the  party  accompanies  or  follows  his  misrepresenta- 
tion by  an  advice  to  the  other  that  he  consult  his  professional  advisers, 
or  his  friends,  before  concluding  the  agreement,  he  does  not  thereby 
counteract  any  effect  upon  the  transaction  which  his  untrue  statement 
would  otherwise  produce. (2)  Nor  does  even  the  sale  of  a  thing  "  ^vith 
all  its  faults,"  render  the  contract  valid  which  might  otherwise  be 
impeached  or  defeated  by  means  of  the  vendor's  misrepresentations. 
Where  this  condition  is  a  part  of  the  agreement,  the  purchaser  must 
take  the  subject-matrter  with  all  its  defects,  patent  or  latent ;  but  the 
vendor  is  not  protected  against  his  false  representations. (3) 

Same  :  effect  of  misrepresentation  on  assignee  of  the  contract. 

Sec.  226.  The  general  doctrine  that  a  representation  must  be  relied 
upon  by  the  party  receiving  it,  in  order  that  it  may  be  a  sufficient 
ground  for  impeaching  or  defeating  a  contract,  extends  also  to  the 
assignment  of  an  agreement  which,  as  between  the  original  parties,  is 
affected  by  a  misrepresentation.  If  a  contract  between  A.  and  B., 
which,  by  reason  of  his  own  mispresentations  in  making  it,  cannot  be 
enforced  by  A.  against  B.,  is  assigned  by  B.  to  a  third  person  C,  who 

(1)  Wilson  V.  Short,  6  Hare,  366,  377. 

(2)  Reynell  v.  Sprye,  1  DeG.  M.  &  G.  660,  710  ;  Dobell  v.  Stevens,  3  B.  &  C.  623. 

(3)  Schneider  v.  Heath,  3  Camp.  506 ;  Early  «.  Garrett,  9  B.  &  C.  928 ;  Spring- 
well  V.  Allen,  2  East,  448,  n.  The  case  of  Harris  v.  Kenible,  1  Sim.  Ill,  120  ;  5 
Blig-h  (N.  S.),  730,  which  came  before  the  M.  R  ,  Sir.  J.  Leach,  the  Lord  Chancellor 
Lyndhurst,  and  the  House  of  Lords,  is  a  very  instructive  discussion  of  the 
docti-ine  concerning-  misrepresentations.  A  contract  relating-  to  a  theatre,  made 
between  the  joint  owners  of  it,  for  a  sale  of  the  share  of  one  to  the  other.  It  was 
claimed  that  misrepresentations  had  been  made  as  to  the  profits.  These  repre- 
sentations were  based  upon  the  books  of  accounts,  which  were  open  to  both  par- 
ties, and  were  justified  by  the  accounts  as  they  appeared.  Sir  J.  Leach,  for  these 
reasons,  the  statements  being-  founded  .on  accounts  equally  open  to  both  parties, 
and  being  in  accordance  with  the  accounts  as  they  appeared,  held  against  the 
claim,  and  decided  that  they  did  not  avoid  the  contract.  This  decision  was  right 
beyond  all  doubt,  if  the  premises  of  fact  were  correct.  Loi-d  Chancellor  Lynd- 
hurst and  the  House  of  Lords,  considering  that  the  agreement  was  unquestion- 
ably pi'ocured  by  the  representations,  that  they  were  made  for  the  purpose  of 
obtaunng  it— found  as  a  fact  that  the  accounts  were  not  equally  plain  and  under- 
stajidable  to  both  parties — on  the  contrary,  they  were  purposely  kept  in  such  a 
ma-nnei-,  that  the  party  not  familiar  with  them  could  not  get  at  their  real  con- 
dition and  ascertain  the  true  state  of  the  business,  without  the  !iid  of  an  expert 
accountant.  They,  therefore,  held  that  the  party  had  been  misled  and  the  con- 
tract was  rescinded.  [That  the  vendee  was  to  take  a  quit -claim  deed  will  not 
enable  ^•endor  to  say  that  the  vendee  did  not  rely  on  his  representations.  Isaacs 
4).  Skrainka,  95  Mo.  517.] 

322 


310  SPECIFIC  I'KRFOKMAycE    OF  CoyiliACTS. 

is  ill  no  such  relations  with  the  parties  that  he  is  affected  by  the 
original  fraud,  aiul  to  whom  no  false  statements  are  made  in  pro- 
curing the  transfer,  the  agreement  thus  assigned,  if  otherwise  binding 
upon  him,  might  be  enforced  against  C. ;  at  least  its  enforcement 
against  him  would  not  bo  hindered  by  A.'s  original  misrei)resentatioii, 
since  he  had  not  acted  upon  its  faith  andcredit.(l)  Nor  is  there  any- 
thing strange  or  inequitable  in  this  conclusion,  for  fraud  does  not 
render  contracts  void,  but  simply  voidable,  and  can  be  taken  advan- 
tage of  only  by  the  persons  defrauded,  and  their  representatives  and 
privies ;  the  right  to  a  remedy  is  personal,  (2) 

Materiality  of  the  representation. 

Sec.  227  VI.  The  last  element  of  a  misrepresentation,  in  order 
that  it  may  be  a  ground  for  denying  the  remedy  of  specific  perfor- 
mance— and  this  requisite  belongs  to  it  alike  in  the  three  other  kinds 
of  remedial  proceedings — is  its  materiality.  The  statement  of  facts 
which  it  contains  must  not  only  be  relied  upon  as  an  impelling  cause 
of  concluding  the  agreement,  but  it  must  also  be  so  material  to  the 
interests  of  the  party  thus  relying  upon  it,  that  he  is  actually  preju- 
diced by  its  falsity  ;  so  material  that  its  falsity  renders  it  unconscion- 
able in  the  one  making  the  representation  to  enforce  the  contract.(3) 
The  court,  however,  does  not  inquire  with  any  care  into  the  extent  of 

(1)  Smith  V.  Clarke,  12  Ves.  477,  484. 

(2)  Harris  v.  Kemble,  5  Blig-li  (N.  S.),  730,  751. 

(3)  See  Polhill  v.  Walter,  3  B.  &  Ad.  114 ;  Flint  v.  Woodin,  9  Hare,  618  ; 
[Thweath  v  McLeod,  56  Ala.  375  ;  Lindsey  v.  Veasey,  62  Ala.  44  ;  Plummer  v. 
Keppler,  26  N.  J.  Eq.  481 ;  but  see  Kelly  v.  Central  Pacific  R.  R.  Co.,  74  Cal.  557.] 
In  Fellowes  n.  Lord  Gwydyr,  1  Sim.  63  ;  1  R.  &  My.  83,  the  defendant,  the  vendee 
entered  into  the  contract,  as  he  supposed,  with  one  B.,  being  leil  by  one  A.  to 
believe  that  he  was  contracting-  with  B.,  as  the  principal,  throug-h  the  agency  of 
A.  acting  on  behalf  ot  B.  It  turned  out  that  A.  was  the  real  party  in  interest, 
and  that  the  purchaser  really  contracted  with  him,  and  the  contract  sought  to  be 
enforced  was  his.  Tlie  defendant  alleged  this  misrepresentation  as  a  defense. 
There  was  nothing  proved  from  which  it  could  be  inferred  that  defendant  would 
not  have  made  a  contract  with  A.  himself,  as  the  principal,  on  the  same  terms  ; 
nor  was  it  shown  that  he  had  been  put  to  any  inconvenience  or  suffered  any  loss 
by  reason  of  the  misrepresentations ;  so  the  court  held  them  immaterial  and 
decreed  a  specific  performance.  Morrison  v.  Lods,  39  Cal.  381.  In  order  to 
defeat  the  specific  performance  of  a  contract  on  the  ground  of  plaintiff's  misrepre- 
sentations, the  defendant  must  show  that  he  will  suffer  some  damage  by  means 
of  the  misrepresentation  if  the  decree  is  made  against  him.  In  Wuestlioff  v. 
Seymour,  7  C.  E.  Green,  66,  the  vendor,  in  the  negotiation  which  led  to  a  contract 
of  sale,  falsely  represented  to  tlie  vend<;e  that  an  alley  on  the  premises  was  only 
a  pi'ivate  right  of  way  in  a  few  jiersons,  when  in  fact  it  was  a  public  alley  ;  a 
public  highway  ;  this  false  representation  bemg  set  uyi  as  a  defense  to  a  suit  for 
a  specific  jierformance  brought  by  the  vendor,  the  cou7-t  hi>ld  it  not  to  be  a  defense  ; 
that  the  misi-epresentation  could  not  work  any  material  injury  to  the  defendant, 
since  his  rights  of  property  were  substantially  the  same  in  either  case.  This 
decision  cannot,  in  my  opinion,  be  supported  on  principle.  The  pjiblic  easement 
is  certainly  a  far  heavier  burden,  a  greater  incumbrance,  and  more  detrimental 

323 


MUST  BE  FREE  FROM    MISREPRESENTATION.  311 

the  prejudice ;  it  is  sufficient  if  the  party  who  has  been  misled  is  very 
slightly  prejudiced,  if  the  amount  is  at  all  appreciable. (1) 

Where  intentional  and  fraudulent. 

Sec.  228.  If  a  representation,  upon  which  an  agreement  has  been 
entered  into,  is  not  only  untrue  but  fraudulent,  or  if  it  contains  any 
element  of  knowledge  or  intention,  it  forms  a  complete  defense  to 
an  enforcement  of  the  whole  contract.  The  party  who  made  it  will 
not  be  allowed,  against  the  objection  of  the  other  party,  to  waive  the 
particular  part  of  the  contract  to  which  the  false  statement  relates,  or 
with  which  it  is  concerned,  and  to  obtain  a  specific  performance  of 
the  remainder.(2)  The  language  of  the  learned  equity  judge  quoted 
in  the  note,  clearly  points  to  a  misrepresentation  which  is  fraudulent, 

to  the  pecuniary  value  of  the  premises,  than  the  private  easement  in  favor  of  a 
few  specitied  persons.  One  fact  is  a  test  of  this  difference.  The  pui'chaser  might 
be  able,  by  negotiation  with  the  holders  of  the  private  i-ight.  to  extinguish  their 
easement ;  but  he  could  not,  by  any  private  proceeding  or  negotiotion,  extinguish. 
the  public  easement  of  the  highway.  In  Wells  v.  Millett,  23  Wise.  64,  the  defend- 
ant had  conti-acted  to  convey  to  the  plaintiff  a  piece  of  land  in  exchange  for  an 
interest  in  certain  barges  and  a  steamboat  transferi'ed  to  him,  relying  upon  repre- 
sentations by  the  plaintiff  as  to  the  condition  of  the  barges  and  the  incumbrances 
on  the  steamboat ;  these  representations  proved  to  be  false,  and  a  specific  per- 
formance, at  the  plaintiff's  suit  was,  therefore,  refused.  [See,  also,  Buchanan  v. 
Lorman,  3  Gill,  51 ;  RajTier  v.  Wilson,  43  Md.  440.] 

(1)  Cadman  v.  Horner.  IS  Ves.  10.     [Hanna  v   Phillips.  1  Grant,  (Pa.)  254.] 

(2)  Viscount  Clermont  v.  Tasbui-gh.  1  J.  &  W.  112,  119.     In  this  case,  Sir  T. 
Plumer,  in  deciding  the  point  which  was  squai-ely  presented,  said:     "There is 
no  authority  anywhere,  no  case  where  the  court  has,  when  misrepresentation  was 
the  ground  of  a  contract,  decreed  the  specific  performance  of  it ;  and  nothing 
would  be  more  dangerous  than  to  entertain  such  a  jurisdiction.     The  i3rincii3le 
upon  which  performance  of  an  agreement  is  compelled,  requires  that  it  must 
be  clear  of  the  imputation  of  any  deception.     The  conduct  of  the  person  seeking 
it  must  be  free  from  all  blame;    misrepresentation,  even  to  a  small  part  only, 
prevents  him  from  applying  here  for  relief.     The  reason  of  this  is  obvious ;  if  it 
be  so  obtained,  the  contract  is  void  both  at  law  and  in  equity.    Where  an  a^-ree- 
ment  has  been  obtained  by  fraud,  is  the  effect  to  alter  it  pai-tially,  to  cut  it  down, 
or  modify  it  only  ?     No  ;  it  vitiates  it  in  toto,  and  the  party  who  has  been  drawn 
in  is  totally  absolved  from  obligation.     If  so,  what  equity  has  the  other  party, 
who,  by  his  conduct,  has  lost  one  conti-act,  to  call  on  the  court,  for  his  benefit, 
to  make  a  new  one  1    If  the  defendant  were  willing  to  consent  to  it,  and  to  enter 
into  a  new  agreement,  it  would  be  a  different  case  ;  but  if  he  refuses,  if  he  insists 
that  he  is  absolved  from  it,  what  equity  can  there  be  in  favor  of  the  other?" 
All  this  language  plainly  assumes  that  the  representation  is  fraudulent ;  or,  at 
least,  that    thei-e  was  the  scienter.     It  speaks  of  the  contract  being  void,  both 
at  law  and  in  equity,  of  its  being  obtained  by  fraud,   of  the  necessity  of  the 
plaintiff's  being  free  from  deception,  etc.,  etc.,  all  which  ex])ressions  are  utterly 
incompatible  with  an  innocent  misrepresentation.     See,  also,  Cadman  v.  Horner, 
18  Ves.  10;    Boynton  •?;.  Hazelboom,  14  Allen,  107;   Thompson  v.  Tod,   1  Petersf 
C.  C.  388.     [See,  also.  Hill  v.  Bi-ower,  7ij  N.  C.  124 ;  Snedaker  v.  Morris,  2  Duv. 
(Ky.)  542  ;  Miller  v.  Chetwood,  2  N.  J.  Eq.  199.] 

824 


312  SPECIFIC  I'KKFOKMASCE    OF  CO.STHACTS. 

which  contains  ascieiifer,  and  which  avoids  the  agreement  both  at  law 
and  in  equity,  although  the  particular  false  statement  in  that  case  was 
found,  as  a  fact,  not  to  have  been  wilful.  A  representation,  us  we 
have  seen,  may  prevent  the  specilic  enforcement  of  an  agreement  by 
a  conrt  of  equity,  although  it  was  not  intentionally  false,  alihough 
the  party  making  it  was  innocent  of  any  deception;  and  believed  his 
statement  to  be  true.  To  misrepresentations  of  this  kind  the  reason- 
ing of  tlic  court  in  the  passages  cited  has  no  application,  and  there 
is  no  rule  or  i)rinciple  of  equity  which  in  such  a  case  prevents  the 
partial  enforcement  of  a  contract  which  is  divisible,  or  the  specific 
execution  of  it  with  compensation  in  respect  of  its  parts,  incidents, 
or  features  which  do  not  correspond  with  the  description.  All  the 
cases  of  a  specific  performance  with  compensation  or  abatement  from 
the  price  on  account  of  some  partial  failure  of  the  subject-matter  to 
agree  with  the  description — cases,  in  other  words,  of  a  partial  defect 
where  the  thing  has  been  described  as  free  from  defect — are  illus- 
trations and  proofs  of  this  statement.  This  is  especially  so  where 
the  untrue  statement  is  confined  to  the  quantity  of  the  land  sold  or  to 
the  value  of  it,  so  that  a  proportionate  deduction  from  the  agi'eed 
price  is  easily  made.(l)     Of  course,  if  the  misrepresentation  goes  to 

(1)  See  Powell  v.  Elliott,  L.  R.  10  Ch.  424,  where  vendors  of  a  larg'e  colliery 
made  misrepresentations  as  to  the  net  income,  and  a  specific  performance  with 
compensation — deduction  from  the  price  was  decreed.  The  misstatement  was  not 
here  held  to  be  grossly  fraudulent,  but  from  the  nature  of  the  case,  it  is  difficult 
to  suppose  that  the  real  facts  were  not  known.  It  went,  however,  to  an  inci- 
dental matter,  and  could  easily  be  compensated  by  a  simple  and  equitable  adjust- 
ment of  the  price.  Whittemore  x\  Whittemore,  L.  R.  8  Eq.  603  ;  this  was  a  serious 
misrepresentation — not  intentional,  so  far  as  the  case  shows — as  to  the  amount  of 
land,  and  the  agreement  was  enforced  against  the  vendee  with  a  corresponding 
abatement.  In  Leyland  v.  lUingworth,  2  DeG.  F.  &  J.  248,  where  there  was  a 
misi-epresentation — as  held  by  the  court  concerning  a  water  supjily — the  venaee 
■was  given  the  option  of  either  being  di.schai'ged  fi-om  the  contract  or  of  completing 
it  with  an  abatement.  The  court  ti-eated  the  untrue  statement  as  destroying 
the  obligation  of  the  contract,  although  distinctly  assreted  that  **  no  fraudu- 
lent or  dishonest  intention  was  imputed  to  any  one."  Even  where  the  misrepre- 
sentation is  willful,  intentional,  with  knowledge,  so  that  the  remedy  of  a  rescission 
would  be  granted,  still,  as  the  contract  is  thei-eby  made  voidable  and  not  void,  the 
Injured  party  may  waive  the  i-ight  to  a  complete  defeat  of  the  conti-acf,  and  may 
msist  upon  a  partial  specific  jierformance  with  compensation  for  {\w.  defect,  uiiless 
the  case  is  one  which  furnishes  no  foundation  for  estimating  the  amount  of  the 
compensation.  See,  in  addition  to  cases  already  cited  in  this  note,  the  following 
illustrations:  Voorhees  v.  De  Meyer,  2  Bai-b.  37  ;  Woodcock  v.  Bennett,  1  Cow. 
711 ;  Masson's  Appeal,  20  P.  P.  Smith,  2(5.  29  ;  Anthony  v.  Leftwich.  3  Rand.  2.08  ; 
Slaughtei-  ?>.  Tiudle,  1  Litt.  3.")8  ;  McCorkle  v.  Brown.  9  Sm.  &  Mar.  107  ;  Gibbst). 
Champion,  3  Ohio,  335  ;  Pratt  v.  Carroll,  8  Cranch,  471. 

325 


THE    CONTRACT  MUST    BE   FREE    FROM   MISTAKE.  313 

the  very  essence  of  the  bargain,  if  it  concerns  the  substantial  terras  of 
the  agreement,  a  specific  performance  with  compensation  is  impossible. 
This  would  be  the  case  where  the  untrue  statement  was  as  to  the  ven- 
dor's title  to  the  whole  property,  or  where  it  concerned  the  entire 
nature  of  the  estate,  as  Whore  land  represented  to  be  in  fee  was 
leasehold,  or  where  it  related  to  some  minor  feature,  but  that  feature 
afiected  the  whole  subject-matter  alike — and  other  similar  instances. 


SECTION  XIII. 

The  contract  must  he  free  from  mistake. 

Section  229.  In  administering  its  remedy  of  specific  performance^ 
equity  requires  that  the  contract  shall  not  only  be,  in  general,  legally 
valid,  but  that  it  shall  be  free  from  unfairness,  hardship,  fraud,  or 
mistake.  A  mistake,  therefore,  when  established  according  to  its 
judicial  signification,  will  prevent  a  court  of  equity  from  specifically 
enforcing  the  agreement;  it  may,  also,  constitute  the  basis  for  two 
other  equitable  remedies,  that  of  rescission,  and  that  of  reformation  or 
correction.  The  essential  element  of  mistake  is  ignorance.  It  is  dis- 
tinguished from  fraud,  fraudulent  representations,  or  fraudulent 
concealments,  by  the  absence  of  knowledge,  of  what  in  the  technical 
nomenclature  of  the  common  law,  is  called  the  scienter.  A  mistake, 
then,  is  some  act,  omission,  misapprehension,  or  misunderstanding, 
connected  with  or  relating  to  the  contract,  done  or  suff"ered  by  one  or 
both  the  parties  erroneously,  but  without  intention,  design,  or 
knowledge. 

Sec.  28i).  In  the  vast  majority  of  instances,  the  contract  affected  by 
a  mistaka  is  written.  In  such  cases,  the  error,  if  proved  at  all,  must 
be  proved  by  parol  evidence ;  in  fact,  the  very  process  of  judi- 
cially establishing  the  mistake,  will  frequently,  if  not  generally, 
cons":  ^' in  showing  that  the  written  agreement  should  be  altered  or 
modi  ioJ,  either  by  adding,  or  omitting,  or  varying  some  of  its  terms, 
by  i..(nins  of  parol  evidence;  in  other  words,  by  a  parol  variation  of 
its  toi-ms.  In  this  manner  the  written  contract  is  brought  into  a  con- 
formity with  the  agreement  actually  made  by  the  parties.  The 
question  thus  arises  on  the  threshold  of  the  discussion,  whether  this 
proceeding  is  possible  ?  Do  the  general  doctrines  of  evidence,  and 
espcc:;il^y  docs  the  statute  of  frauds  permit  such  an  alteration  of 
326 


814  SPECIFIC  1'KRFoi;ma.\ce  of  cuxtj^acts. 

written  contracts  ?  Altlioug-h  there  have  been  a  few  conliictm^ 
authorities — a  slight  judicial  protest — it  is  well  established,  both  in 
England  and  in  the  United  (States,  that  the  admission  of  parol  evi- 
dence to  modify  or  vary  written  agreements,  on  the  ground  of  their 
mistake,  is  an  exception  to  the  general  rules  of  evidence ;  and  that 
the  statute  of  frauds  does  not  pn)liibit  the  use  of  jiarol  evidence 
in  order  to  defeat  the  specific  enforcehient  of  a  written  contract 
affected  by  mistake,  and  even  in  order  to  correct  the  mistake  itscl.", 
since  the  parol  evidence  is  not  employed  in  such  cases  for  the  iiriuuuy 
object  of  proving  an  agreement  in  the  lirst  instance,  but  for  the  pur- 
pose of  defeating  an  equity  which  otherwise  arises  from  a  contract 
made  through  mistake. (1) 

(1)  As  to  the  statute  of  frauds,  Clark  v.  Grant,  14  Ves.  519.  In  Marquis  Town- 
shend-y.  Stang-room,  6  Ves.  328,  333,  Lord  Eldon  stated  the  doctrine,  and  the  rea- 
sons for  it,  as  follows :  "It  cannot  be  said  that,  because  the  leyal  iinjiort  of  a 
written  agreement  cannot  be  varied  l)y  parol  evidence  intended  to  give  it  another 
sense,  therefore,  in  efinity,  when  once  the  court  is  in  possession  of  the  legal  sense, 
there  is  nothing  more  to  inquire  into.  Fraud  is  a  distinct  case,  and  perhaps  more 
examinable  at  law  ;  but  all  the  doctrine  of  the  court  as  to  cases  of  unconscionable 
agi-eements,  hard  agreements,  agreements  entered  into  by  mistake  or  surprise, 
which,  thei-efoi-e,  the  eoui-t  will  not  execute,  must  be  struck  out,  if  it  is  true  that 
because  parol  evidence  should  not  be  admitted  at  law,  therefore,  it  shall  not  be 
admitted  in  equity  upon  the  question  whether  admitting  the  agreement  to  be 
such  as  at  law  it  is  said  to  be,  the  party  shall  have  a  sjiecific  execution,  or  be  left 
to  that  coui't  in  which,  it  is  admitted,  parol  evidence  cannot  V)e  admitted."  In 
Clinan  v.  Ccoke,  1  Sch.  &  Lef.  21,  39,  Lord  Rbdbsdalb  summed  up  and  condenseil 
the  whole  argument  and  doctrine  into  one  epigramatic  statement :  "  No  person 
shall  be  charged  with  the  execution  of  an  agreement,  who  has  not,  either  by  him- 
self or  his  agent,  signed  a  written  agreement ;  but  the  statute  does  not  say  that 
if  a  written  agreement  is  signed,  the  same  exception  shall  not  hold  to  it  that  did 
before  the  statute."  That  the  case  of  mistake  is  excepted  from  the  general  doc- 
trine of  evidence  which  forbids  the  variation  of  written  instruments  by  parol,  see 
Peterson  v.  Grover,  20  Me.  3G3  ;  Goodell  v.  Field,  15  Vt.  448  ;  Chamnesst).  Crutch- 
field,  2  Ii-ed.  Eq.  148 ;  Hai-rison  v.  Howard,  1  Ired.  E(i.  407  ;  Gibson  v.  Watts,  1 
McCoi-d  Eq.  400 ;  Blanchard  v.  Moore,  4  J.  J.  Marsh.  471 ;  Huston  v.  Noble,  4  J. 
J.  Marsh.  130  ;  Anderson  v.  Bacon,  1  A.  K.  Marsh.  48  ;  Perry  v.  Pearson,  1  Humph. 
431 ;  Van  Ness  v  City  of  Washington,  4  Pet.  232  ;  [Berry  v.  Whitney,  40  Mich.  G.') ; 
McFarlane  v.  Williams,  107  111.  33  ;  Popplein  v.  Foley,  01  Md.  381  ;  Warren  v.  Hall, 
41  Hun,  4G6  ;  Gaff  f.  Jones  70  Tex.  572.]  For  some  further  instances  in  which 
the  doctrine  as  to  the  effect  of  mistake  has  been  announced  or  applied,  see  Margraff 
V.  Muii',  57  N.  Y.  155  ;  Patterson  v.  Bloomer,  35  Conn.  57 ;  Lawrence  v.  Staigg,  8 
R.  I.  256.  In  Conover  v.  Wordell,  5  C.  E.  Green,  266,  it  was  said  that  a  vendee 
who  sued  for  a  specific  enforcement  of  the  contract  would  not  be  prevented  from 
obtaining  the  relief  by  his  having  already  accepted  a  deed  of  conveyance  purpoi-t- 
ing  to  be  in  perfoi-mance  of  the  agreement,  where  such  acceptance  was  done 
under  a  mistake,  on  his  part,  as  to  the  contents  and  effect  of  the  deed.  Surprise 
is  also  a  ground  for  defeating  a  specific  performance.  Willan  v.  Willan,  16  Ves. 
72;  19  Ves.  590  ;  2  Dow.  275;  Twining  v.  Morrice,  2  Bro.  C.  V.  326;  Ma.son  v. 
Armitage,  13  Ves.  25.     See,  also,  on  the  general  docti-ine  of  defeating  a  specifia 

827 


77/ a;  coxtract  must  be  free  from  mistake.  H15 

Sec.  231.  Mistake  may  be  concerning  tlio  subject-matter  of  the  con- 
tract or  concerning  its  terms.  In  the  iirst  case,  the  terms  of  the 
contract  are  drawn  u})  according  to  the  intention  of  both  the  jiarties, 
but  there  is  an  error  in  respect  of  the  thing  to  wliich  these  terms 
apply ;  as,  for  example,  in  respect  of  the  amount,  value,  situation, 
title,  boimdaries,  or  other  features  of  the  land  intended  to  be  sold. 
Such  a  mistake  may  occur  in  a  verbal  as  well  as  in  a  written  agree- 
ment. In  the  second  case,  the  mistake  g'".aerally  occurs  in  reducing 
the  contract  to  writing,  in  adding,  omitting,  or  changing  some  term  ; 
although  it  is,  of  course,  possible  that  the  parties  should  fall  into  an 
error  in  ^he  original  formation  of  a  provision  of  their  agreement,  while 
their  :iegotiation  and  conclusions  are  still  verbal ;  but  such  an  error 
v.ill,  iu  the  majority  of  instances,  be  a  mistake  or  misconception,  as 
to  the  legal  effect  and  import  of  the  term,  and  not  as  to  the  language 
or  form  of  the  stipulation.  The  effect  of  a  mistake  may  largely 
depend  upon  the  party  who  made  it.  In  this  respect,  mistakes  are 
divided  into  three  classes:  1.  Those  made  by  the  defendant  in  the 
suit  whatever  be  its  nature  or  object.  2.  Those  made  by  the  plaintiff 
in  the  suit.  3.  Those  which  are  mutual,  or  into  which  both  parties 
have  alike  fallen.  Again,  mistakes  may  give  rise  to  three  entirely 
distinct  equitable  remedies  or  remedial  rights,  and  their  effects  in 
creating  these  rights  must  be  most  carefully  distinguished.  They 
may  avail :  1.  As  a  defense  in  suits  for  the  specific  performance  of  the 
contracts,  defeating  such  relief.  2.  As  a  ground  for  rescinding  the 
contract.  3.  As  a  ground  for  reforming  or  correcting  the  contract. 
The  two  latter  are  beyond  the  scope  of  this  treatise,  and  will  only  be 
incidentally  touched  upon,  except  in  the  single  case  where  the  refor- 
mation of  an  erroneous  agreement,  at  the  demand  of  the  plaintiff,  is 
combined  with  his  suit  for  its  specific  performance  when  reformed. 
In  the  further  discussion  of  the  subject,  I  shall  pursue  the  following 
order  :  1.  What  mistakes  can  be  made  the  ground  either  of  relieving 
a  defendant  from  the  performance  of  a  contract  or  of  the  affirmative 
remedy  of  rescission  or  reformation.  2.  Mistakes  set  up  by  defend- 
ant as  a  ground  for  defeating  the  plaintiff's  remedy,  and  herein  inci- 
dentally of  rescission    and    reformation.      3.    Mistakes   set   up   by 

performance  by  parol  proof  of  a  mistake  in  the  ag-reem'nt,  Bradbury  v.  "White,  4 
Greenl.  391  ;  Rog-ei-s  v.  Saunders,  16  Me.  92  ;  Quinn  v.  Roath,  37  Conn.  16  ;  Canter- 
bury Aqueduct  Co.  v.  Ensworth,  22  Conn.  608;  Best  v.  Stow,  2  Sandf.  Ch.  298; 
Ryno  V.  Darby,  .5  C.  E.  Green  231 ;  Chambers  v.  Livermore,  15  Mich.  381 ;  Pen- 
dleton V.  Dalton,  Phill.  Eq.  (N.  C.)  119;  Morganthau  v.  White,  1  Sweeney,  395; 
"White  V.  Williams,  48  Barb.  222.  [Strangers  to  the  contract,  when  their  rights 
are  concerned,  may  show  by  parol  that  the  contract  is  different  from  what  it  pur- 
ports to  be  on  the  face  of  the  writings.  Washburn  &  IMoen  Co.  v.  Chicago  Fence 
Co.,  109  111.  71  ;  Brenner  v.  Luth,  28  Kan.  5S1  ] 
328 


316  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

plaintifF  as  a  ground  for  reforming  the  contract,  and  tlie  enforcing  it 
as  reformed. 

"What  species  of  mistakes  are  available  as  the  occasion  of 
equitable  relief,  either  defensive  or  affirmative.  I.  The 
mistake  must  be  concerning  a  matter  of  fact,  and  not 
merely  concerning  the  la^v. 
Sec.  232.  First.  Tlie  general  rule  is  established  by  a  strong  pre- 
ponderance of  authority,  although  not  without  a  contrary  opinion 
expressed  by  able  judges  in  numerous  decisions,  that  a  mistake,  in 
order  to  be  available  for  any  purpose,  must  be  one  of  fact;  must 
concern  some  matter  of  fact  connected  with  the  subject-matter; 
that  is,  nuist  be  in  reference  to  some  one  or  more  of  the  particulars 
mentioned  in  the  preceding  paragraph ;  and  that  in  pursuance  of 
the  maxim  ignorantia  legis  non  excusat,  neither  an  ignorance  of  the 
law,  nor  a  mistake  in  the  law  affecting  a  contract,  will,  of  itself, 
be  a  ground  for  denying  its  specific  perfornuince,(')  nor  for  its 
rescission. (2)  By  virtue  of  this  principle  neither  i)arty  to  a  contract 
can  allege,  as  the  reason  for  any  relief,  negative  or  aflirmative,  that 
he  or  that  both  misunderstood,  or  were  mistaken,  or  misinformed, 
or  ignorant,  as  to  the  legal  meaning  and  effect  of  any  term,  or  of  the 
agreement  as  a  whole ;  nor  that  the  legal  meaning  and  effect  of  the 
contract,  or  of  any  provision,  are  different  from  what  was  intended 
and  supposed ;  provided  the  terms  themselves — the  languat/e  of  the  pro- 
visio7is  and  the  subject-matter  to  which  they  relate — are  the  same  which  they 
were  designed  to  be,  and  to  which  their  minds  had  consented  as  the  result  of 
their  negotiation.(S)  This  limitation  should  be  carefully  observed,  for 
upon  it  depends  the  entire  doctrine  respecting  mistakes  as  to  the  legal 
effect  of  contracts,  and  the  distinction  between  such  errors,  and  those 
concerning  facts.  The  rule  is,  of  course,  confined  to  cases  of  pure  and 
simple  mistakes,  unaccompanied  by  any  other  inequitable  circum- 
stances.    If  the  ignorance  of  one  party,  or  his  mistaken  view  of  a 

(1)  Fallen  v.  Ready,  2  Atk.  587  ;  Gibbons  v.  Caiint,  4  Ves.  849.  per  Loi-d 
Alvanley  ;  Stockley  v.  Stockley,  1  V.  &  B.  2},  30;  Mildinay  v.  Iliing-erfoi-d,  2 
Vern.  2-13.  In  Patterson  v.  Bloomer,  35  Conn.  57,  a  specific  performance  was 
refused  against  a  vendor  of  a  contract,  which  he  had  made  under  a  mistake  as  to 
the  effect  of  the  laws  of  another  state  where  the  land  was  situated  ;  since  the  law 
of  a  country  or  state  other  than  that  of  the  forum  is  treated  by  the  court  as  ufart. 

(2)  Marshall  v.  CoUett,  1  Y.  &  C.  Ex.  232,  238  ;  Cockerell  v.  Cholmeley,  1  R.  & 
My.  418. 

(3)  For  exam))le,  where  the  parties  made  reciprocal  written  agreements  to  .sell 
land  to  each  other,  which  were  not  in  their  legal  effect  dependent,  it  could  not  be 
.shown  that  the  parties  intended  them  to  he  dependent.  Croome  v.  Lediai'd,  2  My. 
&  K.  251.  Where  a  written  agreement  gave  a  lessee  an  ojition  as  to  the  lengtli  of 
his  lease,  evidence  that  the  parties  did  not  intend  such  an  effe-^t  was  inadmissibla  ^ 
Price  V.  Dyer,  17  Ves.  3.50. 

329 


THE    COyTRACT  MUST  BE   FREE   tROM  MISTAKE.  317 

legal  rule,  has  been  taken  advantage  of  by  the  other  as  the  occasion 
for  misrepresentation,  concealment,  undue  advantage,  overreaching, 
or  other  like  means  of  imposition,  it  is  a  circumstance  of  great  weight, 
and  migiit  easily  induce  a  court  to  rescind  a  contract,  or  refuse  to 
enforce  it,  although  the  misstatement,  concealment  unfairness,  or 
other  similar  incident  might  not,  perhaps,  have  been  sufficient,  of 
itself,  to  warrant  such  judicial  action. 
Mistake  of  law. 

JSkc.  238.  The  doctrines  concerning  mistakes  of  the  law,  with  their 
limitations  and  exceptions,  are  so  important  that  they  demand  a 
separate  discussion.  Such  mistake  may  be  made  by  one  or  by 
both  of  the  parties.  In  either  case  it  may  consist  of  ignorance  or 
misapprehension  concerning  the  legal  effect  and  operation  of  the 
instrument  as  a  whole,  or  concerning  the  legal  effect  of  some 
particular  provision.  The  general  rule  is  well  settled  that,  in  th& 
absence  of  special  circumstances,  a  mistake  of  law  in  either  of  these 
forms,  is  not  a  ground  for  relief.  If  there  were  no  elements  of  fraud, 
concealment,  misi^epresentation,  or  undue  influence,  a  party  who 
knew  or  had  an  opportunity  to  know  the  contents  of  a  written 
instrument,  cannot,  in  general,  defeat  its  performance,  or  obtain  a 
reibrmation  because  he  or  both  mistook  its  legal  meaning  and  effect, 
or  the  legal  meaning  and  effect  of  any  of  its  provisions.  This  is  the 
general  doctrine,  as  established  by  a  great  weight  of  authority, 
although  it  is  subject  to  some  limitations  and  apparent  exceptions. (1) 
On  the  same  principle  and  under  the  same  limitations  a  mistake,  as 
to  the  legal  effect  of  an  agreement,  or  as  to  the  legal  results  of  an 
act,  cannot  avail  to  defeat  a  specific  performance. (2) 

(1)  Mellish  V.  Robertson,  2;')  Vt.  608  ;  Beai-dsley  v  Knig-ht,  10  Vt.  185 ;  Goodell  v. 
Field,  15  Yt.  448 ;  Pettes  v.  Baijk  of  Whitehall,  17  Vt.  434 ;  Haven  v.  Foster,  9 
Pick.  112  ;  Wheaton  u.  Wheaton,  9  Conn.  96  ;  Shotwell  v.  Murray,  1  Johns.  Ch. 
512;  Lyon  v.  Richmond,  2  Johns.  Ch.  51;  Champlin  v.  Laytin,  18  Wend.  409, 
per  Bronson,  J.  ;  Crosier  v.  Acer,  7  Paige,  143;  Hall  v.  Reed,  2  Barb.  Ch.  500; 
Dupree  v.  Thompson,  4  Barb.  279  ;  Leavitt  v.  Palmer,  3  N.  Y.  19 ;  Bentley  v. 
Whittemore,  3  C.  E.  Green,  36G  ;  Hawralty  v.  Warren,  3  C.  E.  Green,  124 ;  Gar- 
wood V.  Eldridge's  Adm'r.,  1  Green  Ch.  145  ;  Wintermute  v.  Snyder,  2  Green  Ch. 
489  ;  Light  v.  Light,  9  Han-is,  407  ;  Rankin  v.  Mortimere,  7  Watts,  372  ;  Good  v. 
Herr,  7  Watts  &  ii&vg.  253 ;  Watkins  v.  Stocket,  6  Har.  &  J.  445  ;  McEldery  ■?>. 
Shiijley,  2  Md.  35  ;  Showman  v.  Miller,  6  Md.  479  ;  Alexander  v.  Newton,  2  Gratt. 
266  ;  Schmidt  v.  Labatut,  1  Speer  Eq.  421 ;  Dow  v.  Cai-ter,  1  Sjieer  E(i.  414  ;  Dill 
V.  Shahan,  25  Ala.  702 ;  Paiham  v.  Parhain,  6  Humph.  287 ;  Evants  v.  Strode,  11 
Ohio,  480;  McNaughten  v.  Partridge,  11  Ohio,  22  5  ;  Martin  v.  Hamlin,  18  Mich. 
354;  Ruffnerv.  McConnell,  17  111.  212;  Wood  v.  Price,  46  111.  439;  Adams  v. 
Robertson,  37  111.  45 ;  Hmit  v.  Rousmanier,  8  Wheat.  174 ;  1  Peters,  1 ;  Bank  of 
TJ.  S.  V.  Daniel,  12  Peters,  32 ;  [Storrs  v.  Barker,  6  John.  Ch.  166  ;  Upham  v. 
Hamil,  11  R.  I.  565.] 

(2)  Powell  V.  Smith,  L.  R.  14  Eq.  85  ;  Great  West.  Ry.  Co  v.  Criijps,  5  Hare, 
91 ;  [Hart  v.  Hart,  L.  R.  18  Ch.  D.  670  ;  Wheeler  v.  Smith,  9  How.  55  ;  Lies  v. 
Stub,  6  Watts,  52.] 

330 


318  SPECIFIC   rKRFORMAyCR    OF  CONTRACTS. 

Limitations  ;  vrhen  mistakes  of  la^v  may  be  grounds  for  reliel 
Sec.  234.  To  this  geu(M':ii  doctriiu!  there  are  iin[)tirtaut  limitations; 
but  it  would  not  be  strictly  accurate  to  say  that  any  weli-lbuuded  and 
positive  exc'ci)tions  are  acknowledged  by  the  course  of  judicial  deci- 
sion, although  such  exceptions  have  been  advocated  by  some  courts 
with  great  ability.  In  the  fii'st  place,  the  general  doctrine  does  not 
go  to  the  extent  of  asserting  that,  where  tide  legal  effect  of  a  written 
contract  has  been  confessedly  or  clearly  mistaken  or  misunderstood 
by  both  the  parties,  equity  will  never  interfere  to  deny  a  specific 
enforcement  or  to  grant  its  affirmative  relief.(l)  When  the  parties, 
with  knowledge  of  the  facts,  and  without  any  inequitable  incidents — 
such  as  fraud,  misreprensation,  and  the  like — have  made  an  agreement 
as  both  intended  it  should  be,  and  the  writing  expresses  such  agree- 
ment as  it  was  understood  and  designed  to  be  made,  then  the  general 
doctrine  uniformly  applies,  and  the  agreement  which  the  parties  have 
thus  made  must  stand.  Equity  will  not  reform  it,  nor  refuse  to 
enforce  it,  although  one  or  both  of  the  parties  may  have  mistaken  or 
misconceived  its  legal  meaning,  scope,  and  effect.  But  if,  after 
making  an  agreement,  in  the  process  of  reducing  such  agreement  to 
a  written  form,  the  writing,  by  means  of  a  mistake  of  the  law,  fails 
to  express  the  contract  which  the  parties  actually  entered  into,  equity 
will  interfere  to  reform  it  or  to  prevent  its  enforcement,  to  ihe  same 
extent  as  if  the  failure  of  the  writing  to  express  the  real  contract  was 
caused  by  a  mistake  of  fact.  In  this  instance,  there  is  no  mistake  as 
to  the  legal  import  of  the  contract  actually  made  ;  but  the  mistake  of 
law  prevents  the  real  contract  from  being  embodied  in  the  written 
instrument.(2)  This  limitation  must,  however,  be  kept  within  the 
principle  on  which  it  rests,  which  is,  simply,  that  the  intention  of  the 
parties  should  be  earned  into  effect.  The  intention  of  the  parties  is 
the  criterion.  When  parties  have  amved  at  the  agreement  they 
intended  to  make,  a  court  of  equity  will  reform  the  written  instru- 
ment, or  refuse  to  enforce  it,  if,  through  a  mistake,  either  of  fact  or  of 
law,  it  fails  to  express  that  iatention,  to  embody  the  contract  which 
the  parties  designed  to  make.  On  the  other  hand,  equity  will  not 
interfere  and  alter  a  contract  so  as  to  conform  it  with  an  intention 
which  the  parties  did  not  have  when  they  entered  into  it,  but  which  they 
might,  or  even'  would  have  had,  if  they  had  been   more  correctly 

(1)  Hunt  V.  Rousmanier,  8  Wheat.  174,  216  ;  Snyder  v.  May,  7  Harris,  235,  230  ; 
Jones  V.  Monroe,  32  Geo.  181. 

(2)  Hunt  V.  Rousmanier,  8  Wlii>at.  174  ;  1  Peters,  1  ;  Huss  v.  Mon-is,  13  P.  F. 
Smith,  367;  Clopton  v.  Martin,  11  Ahi.  187,  Stone  v.  Hale,  17  Ala.  557;  Larkina 
V.  Biddle,  21  Ala.  252. 

331 


THE    CONTRACT  MUST  BE   FREE   FROM  MISTAKE.  319 

informed  as  to  the  law — if  they  had  not  been  mistaken  as  to  the  legal 
scope  and  effeci",  of  their  agreement.  On  the  same  ground,  a  court 
will  not  refuse  a  specific  perfornuince  under  such  circumstances,  so  as 
to  carry  out  an  intention  which  did  not  exist  wlien  the  contract  was 
made.(l)  If  an  agreement  expresses  the  thought  and  intention  which 
the  parties  had  at  the  time  and  in  the  act  of  concluding  it,  no  relief, 
affirmative  or  defensive,  will  be  granted  with  respect  to  it,  upon  the 
assumption  that  their  thought  and  intention  would  have  been  differ- 
ent, if  they  had  not  been  mistaken  as  to  the  legal  meaning  and  effect 
of  the  provisions  by  which  such  intention  is  embodied,  even  though  it 
should  be  incontestibly  proved  that  their  intention  would  have  been 
different  if  they  had  been  correctly  informed  as  to  the  law.  But  if  a 
written  instrument  fails  to  express  the  intention  which  the  parties 
had  in  making  the  contract  which  it  purports  to  contain,  equity  will 
grant  its  relief,  either  affirmative  or  defensive,  although  the  failure 
may  have  resulted  from  a  mistake  as  to  the  legal  meaning  and  opera- 
tion of  the  terms  or  language  employed  in  the  writing.  The  instances 
in  which  this  latter  branch  of  the  rule  is  ordinarily  applied  are  those 
involving  mistakes  as  to  the  legal  effect  of  a  description  of  the  subject- 
matter,  and  as  to  the  meaning  and  force  of  technical  words  and 
phrases.  (2) 

Skc.  2:>5.  There  is  one  species  of  legal  mistake  which  has  been 
rega  'de  1  by  some  of  the  decisions  as  resting  upon  equitable  considera- 
tions which  fnay  withdraw  it  from  the  operation  of  the  general  doc- 
trine, and  which  has  given  rise  to  much  conflict  of  opinion  among  the 
courts  and  among  text-writers.  It  is  the  case  of  an  agreement  made 
by  a  party  in  consequence  of  his  mistaken  belief,  that  some  ante- 
cedent legal  right  is  held  by  himself,  or  that  some  antecedent  legal 
duty  rests  upon  him,  and  designed  in  some  manner  to  carry  out  such 
righh,  o.'  to  comply  with  such  duty. (3)  Of  course,  this  particular  case 
is  plainly  distinguishable  from  those  of  ordinary  compromises  and 
.settlements,  where  all  the  parties,  instead  of  ascertaining  and  enforc- 

(1)  Hunt  ?'.  Rousmanier,  supra;  Mai-quip  of  Townshend  -y.  Stangroom,  6  Ves. 
328,  832. 

(2)  The  leading-  case  in  which  both  hranches  of  this  rule  were  exhaustively  dis- 
cussed is  that  of  Hunt  v.  Rousmanier,  supra.  See,  also,  Canedy  v.  Marcy,  13 
Gray,  373-377;  Stedwell  v.  Anderson,  21  Conn.  139;  Gillespie  ■?'.  Moon,  2  Johns. 
Ch.  596  ;  Moser  v.  Libenguth,  2  Rawle.  428  ;  Cook  v.  Husbands,  1 1  Md.  492  ; 
Spring's  v.  Harven,  3  Jones'  Eq.  96  ;  Young  v.  Miller,  10  Ohio,  8.5  ;  Clayton  ■». 
Freet,  10  Ohio  St.  544  ;  MsNaughten  v.  Partridge  11  Ohio,  223  ;  Worley  v.  Tug- 
g\e,  4  Bush,  16S  ;  Smith  v.  Jordan,  13  Minn.  264. 

(3)  See  Mai-quis  of  Townshend  v.  Stangroom,  6  Ves.  328,  332. 

3:52 


320  SPECIFIC    rERF<Hi.MA.\<K    OF   CO.\ri; ACIS. 

ing  their  mutual  rights  and  obligations  which  arc  yet  uudeteriuiued 
and  uncertain,  intentionally  put  an  end  to  all  possible  controversy  by 
a  voluntary  transaction  in  the  way  of  compromise.  There  are  deci- 
sions which  hold  that  the  party  described  in  the  [)articular  case  just 
mentioned,  maybe  relieved  from  the  contract  or  conveyance  which  he 
has  thus  erroneously  made  under  a  mistak(Mi  belief  as  to  the  legal 
relations  in  which  he  stood,  and  especially  wliere  the  error  consisted 
in  the  supposition  that  a  legal  duty  ri^sted  upon  him,  compelling  an 
execution  of  the  contract. (1)  This  relief  against  mistake  as  to  a 
party's  legal  relations,  has  sometimes  been  given  by  setting  aside  a 
contract  entered  into  by  way  of  compromise,  when,  through  a  mis- 
conception of  a  clear  and  settled  legal  rule,  and  an  erroneous  sup- 
position that  a  legal  duty  rested  upon  him,  whereas  plainly  no  such 
duty  existed,  the  party  by  means  of  his  contract  surrendered  his 
property  or  other  rights. (2)  Relief,  however,  can  only  be  given  in 
such  cases — and  that  it  can  be  given  at  all  is  denied  by  higli 
authority — when  there  \va3  no  doubt  as  to  the  antecedent  legal  rights 
and  duties  of  the  parties.  If  there  was  any  uncertainty  as  to  the 
existing  facts  at  the  time  the  agreement  was  made,  or  as  to  future 
events,  or  as  to  the  rights  and  duties  arising  therefrom,  a  compromise 
must  stand,  however  different  the  final  issue  may  be  from  that  which 
was  anticipated.  (:^)  This  partial  and  limited  relief  in  the  case  of 
compromises  is  entirely  rejected  by  other  judicial  decisions,  which 
hold  that  a  compromise  intentionally  entered  into  can  never  be  set 
aside  or  defeated,  on  the  ground  of  a  mistake  as  to  the  facts  or  the 
law  upon  w'hich  it  w^as  based,  in  the  absence  of  fraud,  Concealment, 
or  any  other  like  inequitable  incident. 
Ignorance  of  the  lavr. 

Sec.  236.  A  distinction  has  been  made  by  some  able  judges,  and  in 
some  judicial  decisions,  between  ignorance  of  the  law  and  mistake  of 
the  law.  It  has  been  said  that  the  maxim  ignorantia  legis  non  excusat 
should  be  confined  to  the  mere  ignorance  of  the  law,  which  is  purely 
a  negative  condition  of  the  mind — an  absence  of  knowledge,  While 
this  theory  admits  that  ignorance  of  the  law  is  not,  in  itself,  a  sufii- 
cient  ground  for  the  interposition  of   courts,  either  affirmatively  or 

(1)  Lansdowne  1)  Lansdowiic,  Moseloy,  3(54;  Gross  r  Lebei',  11  Wi-ifrht,  .WO; 
Cabot  V.  Haskins,  3  Pick.  83.  The  case  of  Lansdowne  v.  Lansdowne  has  been 
frequently  explained,  (luestioned,  doubled,  and  its  authority  denied.  It  has 
sometimes  been  said  that  the  decision  turned,  not  upon  any  viei-e  mistake  as  to 
the  lei^al  duties  and  j-ig-hts  of  the  ])arty,  but  upon  circumstances  of  positive  fraud 
and  misleading-,  which,  in  i.-onnection  with  such  a  mistake,  are  always  a  sufficient 
g-i"ound  for  equitable  relief.  |S<-(!  2  Pom.  Imj.  Jur.,  ^^^  84'2.  843  ;  Coojier  r. 
Phibt)s,  L  R.  2  11.  L.  140,  170;  Moreland  c.  Atchison,  It)  Te.\.  303;  Karl  Ueau- 
chantp  V.  Winn,  L.  R.  G  H.  L.  234.] 

(2)  Naylor  v.  Winch  t  Sim.  &  Stu.  .^f).')  ;  F.rig-ham  v.  Briprham,  1  Ves.  12li ; 
Lan.sdowne  r.  Lansdowne.  Moseley,  3()4  ;  and  see  Willan  c.  Willan.  10  Ves.  72; 
Larkins  ?•.  Biddle,  21  Ala.  2.o2.  2.56  ;  Lig-ht  v.  Lig-ht,  9  Harris,  407.  412. 

(3)  ^ee  cases  of  compromises  cited  ante,  under  §  178. 

333 


THE  CONTRACT  MUST  BE  FREE  FROM  MISTAKE.  321 

defensively,  it  insists  that  a  mistake  of  the  law,  which  necessarily 
assumes  some  positive  mental  action,  should  be  placed  upon  the  same 
footing  as  a  mistake  of  fact,  and  should  be  treated  as  a  sufficient 
ground  for  relief,  either  by  way  of  rescission,  reformation,  or  a  denial 
of  specific  enforcement,  as  the  case  may  be.(l) 

Mistake  of  law  produced  by  misleading  conduct  of  the  other 
party. 

Sec.  237.  Whatever  be  the  effect  of  a  mistake  pure  and  simple,  as 
to  the  legal  meaning  and  operation  of  a  contract  or  other  instrument, 
there  is  no  doubt  that  the  equitable  relief,  affirmative  or  defensive,  as 
the  case  may  be,  will  be  granted  when  the  mistake  of  the  complain- 
ing party  with  respect  to  the  legal  scope  and  meaning  of  the  instru- 
ment is  the  direct  result  of  misleading  words,  acts  or  conduct  of  the 
other  party.  It  is  a  rule,  both  well  settled  and  just,  that  where  one 
party,  although  knowing  the  terms  of  a  written  agreement,  is  induced 
to  enter  into  it  by  the  misleading  or  incorrect  statements  of  the  other, 
concerning  the  legal  meaning  and  effect  of  some  provision,  or  of  the 
entire  contract,  whether  such  misstatements  are  intentionally  false  or 
only  innocently  erroneous,  a  court  of  equity  will  reform  the  instru- 
ment at  the  suit  of  the  party  thus  misled,  or  will  rescind  it  when  a 
reformation  is  impracticable,  and,  of  course,  will  refuse  to  enforce  its 
specific  performance  against  the  objection  of  such  party. (2)  Conduct, 
without  words,  may  mislead  a  person  in  this  respect,  as  completely  as 
the  most  formal  language,  and  will  thus  furnish  ground  for  the  same 
equitable  relief.  (3) 

(1)  This  distinction  has  been  acted  upon  by  the  court  in  some  decisions,  and 
approved  by  judges  in  other  cases  when,  however,  the  decision  did  not  turn  upon 
it.  Lawrence  v.  Beaubien,  2  Bailey,  623  ;  Hopkins'  Executors  v.  Mazyck,  1. 
Hill  Eq.  250 ;  Lowndes  v.  Chisholm,  2  McCord  Eq.  455  ;  and  see  Chainplin  v. 
Laytin,  18  Wend.  409,  per  Paige,  senator  ;  Gilbert  v.  Gilbert,  9  Barb.  534  ;  Arthur 
V.  Arthur,  10  Barb.  9  ;  Matthews  ii.  Terwilliger,  3  Barb.  50 ;  Dupree  v.  Thomp- 
son, 4  Barb.  279 ;  Fitzgerald  v.  Peck.  4  Litt.  125  ;  Lammot  v.  Bowley,  6  Har.  & 
John.  500  ;  Naylor  v.  "Winch,  1  S.  &  S.  555,  per  Sir  John  Leach. 

(2)  Chestnut  Hill  Reservoir  Co.  v.  Chase,  14  Conn.  123  ;  Champlin  v.  Laytin, 
18  Wend.  407,  422  ;  Rider  v.  Powell,  28  N.  Y.  310  ;  De  Peyster  v.  Hasbrouck,  11 
N.  Y.  587 ;  Light  v.  Light,  9  Harris,  407,  412  ;  Snyder  v.  May,  7  Harris,  235  ; 
Tyson  v.  Passmore,  2  Barr,  122;  Broad  well  v.  Broad  well,  1  Gilman,  599.  608; 
Coger's  Ex'ors  v.  McGee,  2  Bibb,  321 ;  Phillips  v.  HoUister,  2  Coldw.  269  ;  Cath- 
cart  V.  Robinson,  5  Peters,  264,  276.  [See,  also,  Crosier  v.  Acer,  7  Paige  Ch.  137  ; 
,Moreland  v.  Atchison,  19  Tex.  303 ;  Hawralty  v.  Warren,  18  N.  J.  Eq.  124 ; 
Berry  v.  Whitney,  40  Mich.  G5 ;  Sands  v.  Sands,  112  111.  225.  Where  the  mis- 
representation of  law  involves  a  breach  of  confidence  imposed  in  the  party  making 
the  misrepresentation,  relief  will  be  given.  Abbott  ?>.  Treat,  78  Me.  121  and 
cases  cited  ;  Peter  v.  Wright,  6  Ind.  183  ;  Moreland  v.  Atchison,  19  Tex.  303.] 

(3)  For  example,  when  after  the  agreement  is  verbally  concluded,  one  party 
offers  to  draw  it  up,  and  in  doing  so  changes  its  legal  eflect,  while  the  other,  rely- 
ing upon  his  knowledge  and  integrity,  signs  it  under  the  assumption  that  the 

334 


322  SPECIFIC  rEIitORMANCE    OF  CONTRACTS. 

HoTV  proved. 

Sec.  288.  In  all  cases  of  relief,  affirmative  or  defensive,  founded 
upon  mistake,  and  most  em|)liati("illy  when  the  mistake  is  one  of  law, 
the  burden  of  proof  rests  u[)»)U  the  on(i  alleging"  the  error,  and  the  evi- 
dence must  be  clear  and  convincing.  The  i^arty  asserting  the  mistake 
must  not  only  show  its  existence  by  evidence  of  tlie  most  cogent 
nature,  but  his  version  of  the  transaction  ajid  explanation  of  the  error 
must  be  reasonable  and  probable,  so  that  the  mind  of  the  court  shall 
be  brought  into  as  complete  a  condition  of  certainty  as  is  possible  in 
any  judicial  investigation.  The  complaining  party  must  prove  what 
was  the  real  intent  of  the  parties  and  the  agreement  which  they 
actually  made  in  pursuance  of  that  intent,  his  own  ignorance  of  the 
fact  that  the  instrument  in  question,  at  the  time  of  his  signing  it,  did 
not  express  that  intent,  and  that  this  ignorance  was  not  the  result  of 
iis  own  negligence  or  rashness.(l)  Of  course,  the  difficulty  in  respect 
to  the  proof  will  not  exist  whenever  the  instrument  in  suit  is  one 
which  was  to  have  been  drawn  up  in  pursuance  of,  or  so  as  to  carry 
out,  some  prior  and  existing  writing  or  writings ;  for  the  court  can 
then,  upon  a  mere  inspection  and  comparison  of  the  two  documents, 
detect  any  error  in  the  later  one,  and  can  rectify  it  in  accordance  with 
the  intent  of  the  parties,  so  that  it  shall  harmonize  with  the  earlier 
one.  (2) 

TTnexpected  termination  of  compromises  or  speculative  con- 
tracts. 

Sec.  239.  II.  When  parties  have  entered  into  a  contract  based  upon 
uncertain  or  contingent  events,  purposely  as  a  compromise  of  doubtful 
claims  arising  from  them ;  or  where  parties  have  knowingly  entered 
into  a  speculative  contract,  that  is,  one  in  which  they  intentionally 
speculated  as  to  the  result ;  and  the  facts  upon  which  such  agreement 
was  founded,  or  the  event  of  tlie  agi'eement  itself,  turn  out  very  dif- 
ferent from  what  was  expected  or  anticipated,  this  error,  miscalculation, 
or  disappointment,  although  relating  to  matters  of  fact  and  not  of  law, 
is  not  such  a  mistake,  within  the  meaning  of  the  equitable  doctrine, 
as  entitles  the  disappointed  party  to  any  relief  either  by  way  of 
defeating  or  rescinding  the  contract ;  in  such  classes  of  agreements 

■writing-  is  a  faithful  expression  of  their  contract ;  or  where  one  party  procures 
the  scrivener  to  make  the  chan^-e.  and  keeps  the  other  in  ig^norance  thereof.  See 
Rider  v.  Powell,  28  N.  Y.  310  ;  Matthews  v.  Terwilliger,  3  13arb.  50  ;  Snyder  v. 
May,  7  Harris,  235. 

(1)  Lord  Irnham  ?i.  Child,  1  Br'^wn  C.  C.  92;  Wheaton  v.  Wheaton,  9  Conn. 
96  ;  Demond  v.  Ins.  Co.,  5  R.  I.  130  ;  Taylor  v.  Fleet,  4  Barb.  95 ;  Scott  r.  Frink, 
51  Bnvb.  533  ;  Wood  v.  Patterson,  4  Md.  Ch.  335  ;  M.-M.thon  v.  Spanjrlei-,  4  Rand. 
51 ;  Dupree  v.  McDonald,  4  Dessau.  209  ;  Custard  v.  Custard,  25  Tex.  49  ;  [Diman 
V.  Providence,  etc.,  R.  R.  Co.,  5  R.  I.  130;  Thompson  v.  Pittston,  etc..  Coal  Co., 
7  Phila.  617.] 

(2)  M(;Kay  v.  Simpson,  6  Ired.  Ei^.  452. 

335 


THK  CONTRA  CT  MUST  BE  FREE  FROM  MISTAKE.  323 

the  parties  are  supposed  to  calculate  the  chances,  and  they  certainly 
assume  the  risks.(l) 

Mistake  must  be  material. 

Hkc.  240.  III.  The  fact  concerning  which  the  mistake  is  made  must 
be  material  to  the  contract,  affecting  its  substance.  A  mistake  by  both 
of  the  parties  in  reference  to  some  fact  which,  though  connected  with 
the  agreement,  is  merely  incidental,  and  not  a  part  of  its  subject- 
matter,  or  essential  to  any  of  its  terms,  will  be  disregarded ;  will  not 
constitute  a  sufficient  g'round  for  preventing  a  specific  performance,  or 
for  a  rescission  or  reformation. (2) 

An  intentional  act  or  omission  caruiot  be  a  mistake. 

Sec.  241.  IV.  If  the  parties  to  a  written  contract  have  knowingly 
and  intentionally  drawn  it  so  that  it  does  not  express  the  real  agreement 
which  they  have  made — as,  for  example,  w^here  the  writing  was  pur- 
posely drawn  so  that  certain  terms  of  their  actual  agreement  were 
omitted — no  affirmative  relief  will  be  granted  on  the  ground  of  mistake 
for  there  can  be  no  mistake  m  an  act  knowingly  and  intentionally 
done. (3)    But  a  court  of  equity  will  prevent  one  party  from  using  such 

(1)  See  Harris  v.  Loyd,  5  M.  &  W.  432  ;  and  cases  cited  ante,  under  §  178,  under 
the  head  of  *'  Hardship."  See  Jeffreys  v.  Fairs,  L.  R.  4  Ch.  D.  448  ;  Stanton  v. 
Tattersail,  1  Sm.  &  Gif.  529  ;  Mellers  v.  Duke  of  Devonshire,  16  Beav.  252 ;  Jen- 
nings V.  Broughton,  17  Beav.  234 ;  Colby  v.  Gadsden,  34  Beav.  41(3 ;  Ridgway  v. 
Sneyd,  Kay,  627  ;  Haywood  v.  Cope,  25  Beav.  140. 

(2)  Okill  V.  Whittaker,  1  DeG.  &  Sm.  83  ;  2  Phill.  338.  The  plaintiffs  had 
assigned  a  leasehold  interest,  and  both  parties  were  mistaken  as  to  the  time  the 
lease  had  to  run,  supposing  it  to  be  less  than  it  actually  was,  so  fixed  the  pi-ice  of 
the  sale  at  a  smaller  amount  than  it  otherwise  would  have  been.  On  finding  out 
the  mistake  the  vendors  brought  this  suit,  praying  that  the  vendees  should  be 
compelled  to  reassign  the  balance  of  the  time  over  and  above  tViat  which  had  been 
supposed.  V.  C.  Knight-Brcce,  however,  held  that  the  lease  was  the  subject- 
matter  sold  and  the  time  it  was  to  run  was  an  incident ;  the  mistake  as  to  which 
should  be  disregarded  ;  the  vendors  ought  to  have  known  the  real  condition,  etc., 
and  so  denied  any  relief.  See,  also.  Penny  v.  Martin,  4  Johns.  Ch.  566  ;  Trigg  v. 
Reade,  5  Humph.  529 ;  Stoiy  Etj.  Jur.  §  141. 

(3)  Lord  Irnhain  v.  Child,  1  Bi-o.  C.  C.  92  ;  Lord  Portmore  v.  Mori-is,  2  Bi-o.  C. 
C.  219  ;  Hare  v.  Shearwood,  3  Bro.  C.  C.  168  ;  1  Ves.  241 ;  Pitcairn  v.  Ogbourne.  2 
Ves.  Sen.  375 ;  Cripps  v.  Jee,  4  Bro.  C.  C.  472.  In  Marquis  Pownshend  v.  Stang- 
i-oom,  6  Ves.  322,  where  the  parties  had  intentionally  omitted  a  certain  proviso 
from  a  written  conti-act,  and  afterwards  a  suit  was  brought  to  correct  it  by  insert- 
ing that  provision.  Lord  Eldon  said:  "The  parties  desired  the  conrt  not  to  do 
what  they  intended,  for  the  insertion  of  that  proviso  was  dii-ectly  contrary  to 
their  intention,  but  they  desired  to  be  put  in  the  same  situation  as  if  they  had 
been  better  informed,  and  consequently  had  a  contrary  intention."  Story  Eq. 
Jur.  §  113.  In  the  absence  of  fraud,  such  a  term  cannot  be  proved  for  the  pur- 
pose of  being  enforced.  Nor,  as  a  general  rule,  can  a  writing  be  varied  or  con- 
tradicted by  proof  of  a  verbal  stipiilation  made  at  the  same  time,  and  omitted  on 
the  faith  of  an  assurance  that  it  should  be  as  binding  as  though  incoi-poi-atod 
with  the  written  agreement.     There  being  no  fraud  or  mistake  in  tiie  omission  of 

336 


324  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

a  coTitract  ill  a  maiuier  tliat  would  operate  as  a  fraud  upon  the  other, 
and  where  such  a  fraudulent  use  is  iitteniiitetl  and  would  b(i  consuni- 
niated  without  its  interposition,  the  court  will  interfere,  and,  if 
necessary,  set  aside  the  imperfect  agi'eenient.(l) 

Subsequent  paiol  charge  of  a  -written  contract. 

JSec.  242.  V.  A  subsequent  parol  aijreeuient,  between  the  parties, 
modifying  their  prior  written  contract,  wlien  set  up  by  eitlier  plaintiff 
or  defendant,  does  not  fall  within  the  princi})les  of  mistake.  To  vary 
a  written  contract  in  this  manner  witliout  any  element  of  fraud  or 
mistake,  is  in  general,  forbidden  by  the  ^Statute  of  Frauds.  The  sub- 
sequent verbal  alteration  of  a  written  agreement  will  be  enforce  I  in 
equity  whenever  a  refusal  to  comply  with  it  would  be  a  fraud ;  and  a 

the  provision  from  the  writing-,  the  enforcement  of  it,  by  means  of  ])arol  proof, 
wonld  introdnce,  it  is  said,  all  the  evils  and  (huigers  wliich  the  i-nies  as  to  writ- 
ten evidence  wei-e  desiirned  to  jirevent.  See  Stevens  v.  C()0{)er,  1  Johns.  Ch.  425  ; 
Dwight  ■?'.  Pomeroy,  17  Mass.  303;  Towner  v.  Lucas,  13  Gratt.  70.") ;  Broug-hton  v. 
Coffer,  18  Gratt.  181;  Kuig-ht  v.  Bunn,  7  Ired.  Eq.  77 ;  Westbrook  v.  Harbeson, 
2  McCord  Ecp  112 ;  Ware  v.  Cowles,  24  Ala.  446  ;  Thomas  v.  McCormack,  9  Dana, 
108.  While  this  docti'ine  forbids  the  proof  of  the  verbal  stipulation  intentionally 
omitted,  for  the  pui-jiose  of  adding-  it  to  the  writing  and  enforcing-  the  w-hole 
agreement  thus  vesting  partly  in  wi-iting  ami  partly  in  parol,  it  does  not  go 
to  the  extent  of  denying  to  the  party  for  who.se  benefit  the  verbal  stipulation 
was  made,  the  i-ight  of  proving  the  existence  of  such  verbal  stipulation  by  way 
of  defense,  and  to  pi-event  the  enforcement  of  the  terms  contained  in  the  writing 
alone,  which,  if  permitted,  might  V)e  a  gi-oss  fraud  ujion  him.  In  several  of  the 
states  the  doctrine  that  the  contemporaneous  verbal  stipulation  on  the  faith  of 
which  the  written  ccmtract  was  entered  into  cannot  be  proved  and  enforced,  is 
wholly  rejected ;  and  the  contrary  rule  is  established,  that  such  a  parol  stipula- 
tion may  be  proved  and  specifically  enforced,  the  written  contract,  if  necessary, 
being  i-eformed  by  a  decree  of  the  court  so  as  to  embrace  the  omitted  term.  It 
is  said,  with  great  force  of  reasoning,  that  the  refusal  to  abide  by  such  an  agree- 
ment, and  the  attempt  to  compel  a  performance  of  that  portion  alone  of  the  entire 
contract  whi(-h  is  contained  in  the  writing,  is  of  itself  a  fraud  or  unrighteous 
dealing  which  calls  foi-  the  remedial  action  of  the  equity  courts.  It  is  so  held  in 
Murray  t).  Dake,  4(j  Cal.  (544;  Taylor  c.  Gilman,  25  Vt.  411;  Cogers'  Ex'oi-s  v. 
Magee,  2  Bibb,  321,  and  in  a  series  of  Pennsylvania  cases;  Oliver  v.  Oliver,  4 
Rawle,  141 ;  Rearich  v.  Swinehart,  1  Jones,  233  ;  Renshaw  v.  Gans,  7  Barr.  119  ; 
Campbell  v.  McClenachan,  6  S.  &  11.  171  ;  Miller  ii.  Heuder.son,  10  S.  &  R.  290  ; 
Clai-k  ■?).  Partridge,  2  Ban-,  13  ;  4  Barr.  KU!. 

(I)  Jervis  u.  Berridge,  L.  R  8  Ch.  351.  The  decision  in  this  important  ca.se 
shows  that  while  such  a  contract  cannot  be  reformed  so  as  to  make  it  include  the 
omitted  verbal  stipulations,  the  court  will  not  permit  one  party  to  enfo-cf  thi? 
written  poi-tion  alone  while  repudiating  the  terms  which  had  been  left  out  of  the 
writing,  and  thus  to  perpetrate  a  fi-aml  ;  it  will,  therefore,  re.scind.  m-  allow  the 
party  himself  who  has  been  thus  deceived,  to  rescind  the  whole  agreement.  And 
see,  Murray  v.  Dake,  46  Cal.  644  ;  Quinn  v.  Roath,  37  Conn.  16  ;  and  otlu>r  cases 
cited  in  the  last  note. 

337 


THE  COISTRACT  MUST  BE  FREE  FROM  MISTAKE.  325 

subsequent  parol  waiver  or  abaudoinueut  of  a  written  contract,  or  the 
subsequent  substitution  of  a  different  verbal  agreement  in  its  stead, 
may  prevent  the  enforcement  of  the  original  contract,  although  it  be 
one  required  by  the  Statute  of  Frauds  to  be  in  writing. (1) 

(1)  Price  V.  Dyer,  17  Ves.  356,  BG4,  per  Sir  Wm.  Grant.  The  parties  had  taade 
a  written  contract,  and  afterwards  entered  into  a  parol  ag-reement  by  which  the 
fii-st  was  abandoned  and  different  terms  adopted.  It  was  held  that  the  second 
ag-reement  was  not  designed  as  a  waiver  of  the  first,  but  as  a  moditication  of  or 
addition  to  its  provisions  ;  and  as  it  had  not  been  acted  upon — no  part  perform- 
ance— it  was  no  defense  to  the  first,  and  the  orig-inal  contract  was  therefore 
enforced.  In  Jordan  v.  Sawliins,  3  Bro.  C.  C.  388;  1  Yes.  403,  A.  agreed  in 
writing  to  give  a  lease  to  B.,  to  commence  on  the  21st  of  April,  being  merely  an 
agent  of  one  C;  afterward  A.  &  C.  verbally  agreed  that  the  lease  should  com- 
mence on  the  24th  of  June,  and  be  made  to  C.  directly  instead  of  to  B.  C.  &  B. 
sued  for  a  specific  i)orformance  of  the  written  contract  as  altei-ed  by  the  verbal 
agreement ;  and  it  was  held  that  the  statute  f>f  frauds  jirevented.  Inge  v.  Li^jping- 
well,  2  Dick.  4G9;  Rich  v.  Ja(;kson,  4  Bi-o.  C.  C.  519;  Filmer  v.  Gott,  2  Ves.  401, 
n.;  Coles  v.  Trecothick,  9  Yes.  250  ;  Ilobinson  v.  Page,  3  Ptuss.  119  ;  Legal  v.  Miller, 
2  Ves.  299;  Ryno  v.  Darby,  5  C.  E.  Green,  231,  a  written  contract  will  not  be 
specifically  enforced  if  there  has  been  a  sulisequent  parol  agreement  to  abandon 
it  and  to  substitute  anothei-  in  its  place  ;  and  in  Bowman  v.  Cunningham,  78  111. 
48,  it  was  held  that  a  mutual  abandonment  by  verbal  agreement  of  a  written 
contract  prevented  its  enforcement  in  equity.  [That  parol  contemporaneous  under- 
standings are  inadmissible  to  vary  the  contract,  see  Rittenhouse  i'.  Tomlinson,  27 
N.  J.  Eq.  379  ;  King  v.  Ruckman,  21  N.  J.  Eq.  599 ;  so,  of  a  parol  agreement  to 
change  the  description  of  land  already  contained  in  a  written  contract,  Cai'skad- 
don  V.  Kennedy,  40  N.  J.  Eq.  259.]  In  Ewing  -?>.  Gordon,  49  N.  11.  444,  it  was 
held  that  the  time  for  making  payments  as  provided  in  a  written  contract  for  the 
sale  of  land,  may  be  extended  by  a  subsequent  verbal  agreement  between  the 
parties,  and  that  the  benefit  of  such  arrangement  would  enure  to  the  vendee's 
a.ssignee ;  but  in  Lombard  v.  Chicago  Sinai  Congregation,  75  111.  271,  it  was  said 
that  the  time  for  the  payment  of  installments  past  due  could  not  be  thus  extended 
by  mere  verbal  promises.  [So,  the  defendant  may  show  that  by  a  subsequent 
parol  agreement  he  was  to  retain  the  title  until  other  money  than  that  named  in 
the  original  contract  had  been  repaid  him,  and  he  may  properly  refuse  to  convey 
until  such  other  money  be  repaid,  Hewlett  v.  Miller,  (33  Cal.  185  ;  Quinn  v  Roath, 
37  Conn.  16.  But  he  cannot  show  that  a  different  note  was  given  at  the  time  of 
executing  a  bond,  to  alter  its  conditioii,  from  that  described  in  the  bond,  Yeaton 
V.  Haines,  43  N.  H.  26.]  Some  of  the  earlier  English  cases  denied  that  a  parol 
waiver  of  a  written  contract  for  the  sale  of  land  was  a  good  defense  in  equity  to 
a  specific  performance,  for  the  reason  that  such  a  contract  created  an  equitable 
estate  in  the  vendee,  and  this  estate  could  not  be  assigned  or  surrendered  by  the 
vendee  under  the  statute  of  frauds  unless  by  a  contract  in  writing.  Buckhouse 
1}.  Crossby,  2  Eq.  Cas.  Alir.  32.  pi.  44,  per  Lord  Hardwicke  ;  Bell  v.  Howard,  9 
Mod.  305  ;  Parteriche  v.  Powlet,  2  Atk.  383.  But,  as  stated  in  the  text  and  as 
api^ears  by  the  cases  cited  at  the  commencement  of  this  note,  the  doctrine  is  now 
settled  that  such  a  waiver  defeats  the  enforcement  in  equity  as  well  as  at  law; 
this  is  the  rule  also  in  the  United  States.  Buel  v.  Miller,  4  N.  II.  196 ;  AValker 
V  Wheatly,  2  Humph.  119  ;  England  v.  Jackson,  3  Humph.  584  ;  Botsford  v.  Burr, 
2  Johns.  416;  McCorkle  v.  Brown,  9  Sm.  &  Mar.  1G7 ;  Tolson  v.  Tolson,  10  Mo. 
736.  [That  agreements  for  conveyance  of  land  may  be  rescinded  by  parol,  see 
also  McClure  v.  Jones,  121  Pa.  St.  550.  The  rescission  may  be  inferred  from  acts 
or  circumstances;  Hale  v.  Bryant,  109  111.  34;  Preston  v.  Preston,  95  U.  S.  200 
(vendor  has  given  a  deed  of  tmst  with  the  consent  of  the  vendee) ;  Kimmerle  v. 
Hass,  53  Mich.  341  (complainant  had  declared  in  his  pleadings  in  another  suit 
that  he  had  abandoned  the  contract).  But  the  evidence  of  abnndonment  must 
be  clear;  Ferry  v.  Clarke,  77  Va  397;  Ballard  v.  Ballard.  25  \V.  Va.  470.]  In 
Pennsylvania,  however,  this  doctrine  is  only  admitted  to  a  partial  extent 
and  in  a  modified  form.  See  Goucher  v.  Martin,  9  Watts,  106,  110 ;  Meason 
v.  Kaine,  13  P.  F.  Smith,  339  ;  Workman  v.  Guthrie,  5  Casey,  495,  509 ;  Lauer 
-y.  Lee,  6  Wright,  165 ;  Bowser  v.  Cravener,  6  P.  F.  Smith,  132.  Where  a  writ- 
ten agreement,  instead  of  being  waived  or  abandoned,  is  simply  modified 
b)y  a  subsequent  parol  stipulation,  and  a  suit  is  brought  to  enforce  it  either 
in  its  original  form  or  with  the  modification,  the  defendant  will  be  allowed  to 
elect  between  the  original  written  form  of  the  contract  and  the  form  as  verbally 

338 


Mistake,  -v^hen  set  up   by   a   defendant   to  defeat   a  specific 
performance   demanded  by  the   plaintiff ;  and   herein  in- 
cidentally of  rescission  or  reformation  of  the  contract.     I. 
Where  the  mistake  is  made  by  the  defendant  alone. 
Sec.  243.     Second.  This  sulxlivisiou  will  incliule  cases  tif  a  mistake 
by  the  defeiulaiit,  without  any  relation  to  the   i\>rm  of  the  contract, 
whether  written  or  verbal.     The  mistake  itself  will  <renerally  concern 
the  subject-matter.     The  succeeding  subdivision    will   embrace  the 
cases  where  tlie  defendant  seeks  to  modify  tlie  terms  of  a  written 
afjreenient,  on  account  of  a  mistake  made  by  one  or  both  tlio  jjartios. 

"Where  defendant's  mistake  -was  induced  or  facilitated  by  the 
acts  of  the  plaintiff. 
Sec.  244.  1.  Whenever  the  defendant,  against  whom  a  specitic 
performance  is  asked,  has  fallen  into  a  mistake,  whicli  the  plaintiff, 
by  his  acts  or  omissions,  either  intentionally  or  unintentionally, 
induced  or  made  probable  or  even  possible,  or  to  which  the  plaintiff 
contributed,  such  error,  by  the  plainest  principles  of  equity,  prevents 
an  enforcement  of  the  agreement. (1)     The  position  of  the  defendant, 

modified  ;  and  in  default  of  any  such  election  by  him  a  specific  pei-fonnance  will 
be  decreed  of  the  contract  in  writing-.  Robinson  v.  Page,  3  Russ.  114  ;  Price  v. 
Dyer,  17  Ves.  3.^8. 

(1)  Denny  v.  Hancock,  L.  R.  6  Ch.  1.  Action  for  a  specific  performance;  brought 
by  the  vendor.  A  dwelling-house  and  grounds  wei-e  put  up  lor  sale  ;  the  i)lan  of 
the  premises  showed  the  west  side  bounded  by  a  mass  of  shrubs  and  ti-ees.  De- 
fendant went  with  the  plan  in  his  hand  and  inspected  the  proj>erty,  and  found  on 
the  west  side  a  mass  of  shrubs,  and  on  the  outside  of  this,  just  beyond  it  to  the 
west,  an  iron  fence,  which  appeared  to  be  the  boundary  of  the  place,  and  which 
included  three  magnificent  trees.  Believing  that  this  iron  fence  was  the  boun- 
dary, he  bought  the  property  at  the  auction  sale.  He  then  discovei-ed  that  the 
"boundary  really  ran  thi-ough  the  midst  of  the  shrubbery,  mai-ked  by  stumps  or 
posts  which  were  concealed  by  the  shrubbery,  while  the  iron  fence  ami  the  three 
fine  trees  were  on  other  land.  The  plan  represented  detached  trees,  but  not  these 
trees.  It  was  admitted  that  these  three  trees  wei-e  a  material  element  in  the 
value  of  the  dwelling,  and,  in  fact,  the  belief  that  they  belonged  to  it  was  one  of 
the  main  reasons  which  determined  the  defendant  to  buy  it.  Held,  by  the  LL. 
JJ.,  reversing  the  decision  of  V.  C.  Malixs,  that  the  purchaser  would  naturally 
suppose  the  iron  fence  to  be  the  boundary  ;  that  there  was  nothing  in  the  plan  or 
other  circumstances  to  put  him  on  the  inquiry  ;  that  he  had  been  misled  into  the 
error  by  the  fault  of  the  vendor  in  not  describing  the  place  with  more  accuracy, 
and  even  in  misdescribing  it  on  the  plan,  so  far  as  it  went ;  and  a  specific  pei'- 
formance  was  refused.  It  was  said,  per  Mellish,  L.  J.,  that  the  difference 
between  the  true  and  the  apparent  boundaries  ought  to  have  been  shown  on  the 
plan,  and  also  mentioned  in  the  desci-iption  ;  also  that,  as  long  as  the  vendee  had 
a  good  gi-ound  for  refusing  to  complete,  the  court  had  nothing  to  do  with  his  real 
motives  lying  behind  such  ground,  if  there  were  any — whether  his  real,  objection 
was  the  want  of  the  trees  or  sometliing  else — was  a  matter  with  which  the  court 
had  no  concern.  See,  also,  Weston  7).  Bii-d,  2  W.  R.  145  ;  Swaisland  v.  Di-ar-sley, 
29  Beav.  430.  [So,  where  the  terms  of  sale  stated  that  the  premises  were 
**  inclosed  by  a  rustic  wall,  with  tradesman's  side  entrance,"  and  the  wall  did 
not  foi-m  jiart  of  the  property,  and  the  enti-ance  was  used  by  suffei-ance,  although 
the  terms  of  the  sale  provided  that  mistakes  in  descnption  should  not  annul  the 
sale,  but  that  compensation  might  be  given.  Brewery.  Brown,  28  Ch.  D.  309.] 
Baskcomb  v.  Beckwith,   L.   R.   8   Eq.   100,   per   Lord  Romilly.   M.   R.      When 

:?S9 


THE  CONTRACT  MUST  BE  FREE  FROM  MISTAKE.  327 

under  the  circumstances,  is  quite  analogous  to  that  of  one  who  has 
been  infiuencod  by  the  plaintiff's  false  misrepresentations,  ali hough 
it  is  by  no  means  necessaiy  that  the  plaintiif's  acts  should,  of  them- 
selves, in  the  absence  of  the  defendant's  mistake,  be  sufficiently  mis- 
leading to  defeat  all  relief,  li'  a  mistake,  by  the  defendant,  as  to  the 
legal  meaning  and  effect  of  an  agreement,  is  clearly  proved  to  have 
been  caused  by  the  plaintiff""s  misrepresentations  or  misguiding  state- 
ments, it  will,  according  to  the  doctrine  of  some  decisions,  be  a  suffi- 
cient ground  for  defeating  the  contract  ;(1)  but  the  ratio  decidendi,  in 

defendant  has  contracted  under  a  mistake,  to  wliich  the  plaintiff  has  by  his 
acts,  even  unintentionally  led,  a  specific  performance  will  not  be  enforced. 
Suit  by  vendor  ag-ainst  the  purchaser.  The  owner  of  an  estate  put  up  the  whole 
of  it  (except  a  small  piece)  foi-  sale  in  lots,  subject  to  a  condition  that  no  public 
house  should  be  built,  and  no  trade  carried  on,  on  the  property.  This  condition 
was  intended  to  protect  pui-chasers  by  making'  the  lots  suitable  for  first-class 
residences,  the  propei'ty  being-  in  the  near  vicinity  of  a  large  city.  In  the  par- 
ticulars, the  i:)roperty  thus  advertised  for  sale  was  described  as  the  "  M Es- 
tate," and  there  was  nothing  to  show  that  any  part  of  it  was  excepted.  In  fact,  a 
small  piece  was  excepted.  Defendant  not  knowing  of  any  such  exception, 
and  supposing  fi'om  the  said  papers  that  there  was  no  exception,  and  that  the 
whole  of  the  vendor's  estate  would  be  subject  to  the  said  condition,  bought  a  lot 
consisting  of  a  mansion  house,  which  was  situated  only  one  hundred  yards  from 
the  piece  which  was  actually  excepted.  This  piece  was  so  located,  with  reference 
to  roads,  that  it  would  be  a  vei-y  favorable  site  for  a  public  house  as  a  place  of 
resort  from  the  city,  and  it  seems  to  have  been  assumed  that  it  was  excepted  for 
this  very  purpose.  Defendant,  on  discovering  the  fact,  refused  to  complete, 
unless  the  vendor  would  enter  into  the  same  resti-ictive  covenant  with  respect  to 
the  excepted  piece,  which  the  vendor  would  not  do.  Held,  that  defendant  having 
purchased  imder  a  material  mistake  induced  by  the  plaintiff's  own  acts,  could  not 
be  compelled  to  complete,  unless  the  plaintiff  would  covenant  as  above  mentioned. 
See  Webster  v.  Cecil,  BO  Beav.  62.  At  an  auction  sale,  the  plaintiff  led  the  de- 
fendant— the  vendor — to  believe  that  he  should  not  bid ;  the  seller  was  thus 
thrown  off  his  guard,  and  the  land  was,  by  a  misunderstanding  of  a  person  em- 
ployed to  make  a  reserved  bid  on  behalf  of  the  owner,  suffered  to  be  bid  off  by 
the  plaintiff;  although  there  was  no  fraud,  the  ilefendant's  mistake,  brought  about 
to  a  great  extent  by  the  plaintifTs  conduct,  was  held  to  be  a  sufficient  ground  for 
refusing  an  enforcement.  Mason  v.  Armitage,  13  Ves.  2.5  ;  Pym  v.  Blackburn.  3 
Yes  34.  [So,  where  the  auctioneer  offered  one  thing  for  sale  and  the  intended 
purchaser  bid  for  another,  Fort  Smith  v.  Brogan,  49  Ark.  306.]  In  Higginson  v. 
Clowes,  1.0  Ves.  516,  land  was  sold  in  lots.  The  i^articulars  said  that  the  timber 
on  lots  four  and  five  was  to  be  taken  at  a  valuation ;  one  of  the  conditions  added, 
without  any  reference  to  any  single  lot  or  lots,  but  speaking  in  general  terms, 
that  the  pui'chaser  was  to  talie  the  timber  at  a  valuation.  Held,  by  Sir  Wm. 
Grant,  that  the  special  language  concerning  lots  four  and  five,  was  likely  to  mis- 
lead a  purchaser  as  to  the  meaning  of  the  conditions ;  and  assuming  that  the 
conditions,  properly  construed,  applied  to  all  the  lots,  it  would  be  unjust  to  compel 
a  purchaser  to  i:)erform.  See,  also,  Doggett  v.  Emerson,  3  Story,  700  ;  Rider  v. 
Powell,  23  N.  Y  310  ;  Matthews  v.  Terwilliger,  3  Barb.  50.  [The  plaintiff  must 
be  diligent  in  asserting  his  claim  to  relief.  Lamb  v.  Harris,  8  Ga.  546.] 
(1)  Broad  well  v.  Broad  well,  1  Gilman,  599  ;  Drew  v.  Clarke,  Cooke,  374. 
340 


328  SPECIFIC  PERFORMAyCE    OF   COy TRACTS, 

such  a  case,  is,  strictly  speakiuir,  tlie  fraud  of  tlio  i)laiiitiff,  and  not 

the  mistake  of  tlio  dcl'tMidauT. 

Where  the  mistake  is  solely  due  to  the  defendant. 

Hec.  2-45.  2.  It  is  not  necessary,  however,  that  tlio  defendant's  error 
should,  to  any  extent,  be  referable  to  the  conduct  of  the  otlier  party.  A 
mistake,  whicli  is  entirely  his  own  act  or  oniission,  or  that  of  his  a^'-ent, 
and  for  which  the  plaintiff  is  not  in  the  least  responsible,  will  defeat  the 
relief  of  specific  performance.  (1)    There  is  nothing  inequitable  in  this 

(1)  A  cdurt  of  equity  would  even  jj^rant  the  affirmative  relief  of  rescission  or 
reformation,  ag-ainst  the  eiects  of  a  mistake  which  was  wholly  the  act  or  omis- 
sion of  the  comjilaining  party,  as  in  Ball  v.  Storie,  1  H.  &  S.  210.  a  lawyer  wa-s 
relieved  at  his  own  suit,  from  an  ei-ror  in  his  own  deed,  which  ho  di-ew  himself. 
The  following-  are  illustrations  of  the  rule  stated  in  the  text.  In  Malins  v.  Fi-ee- 
man,  2  Keen,  2i5,  an  agent  was  employed  to  Lid  for  a  certain  lot  to  be  sold  at  an 
auction ;  coniing  into  the  sale-room,  he  heard  the  description  of  an  entirely 
diff»rent  parcel  of  land  read,  and  tlie  sale  of  that  commencing-,  he  went  on  bid- 
ding hastily  and  without  examination  or  thought,  but  under  the  supposition 
grossly  erroneous,  that  the  lot  being  sold  was  the  one  for  which  he  was  employed 
to  bid;  it  was  finally  struck  off  on  his  bidding,  but  a  specific  execution  of  the 
contract  was  refused.  Here  the  mistake  of  the  agent  was  imputable  to  the 
defendant,  and  although  it  resulted  from  gi-oss  laches  on  his  part,  it  was  hfld  ito 
be  a  good  defense.  In  Manser  t\  Back,  C  Hare,  443,  a  vendor  had  revokeil  the 
authority  of  an  auctioneer  to  sell  a  part  of  the  land,  but  the  aucticmeer,  thi-ough 
forgetfnlness  or  inadvertence,  sold  the  whole — although  the  purchaser  snpjiosed 
the  agent  was  acting  within  the  scope  of  his  authority — and,  in  strict  law,  it  seems 
that  the  agent  had  an  implied  authoi-ity  to  sell  the  whole,  and  bind  his  principal 
thereby  to  the  purchaser,  yet  a  specific  performance  was  refused  on  account  of 
the  agent's  mistake.  This  case  certainly  carries  the  rule  to  its  extreme  length, 
for  it  does  not  seem  fi-om  the  report  that  the  error  of  the  agent  would  have 
avoided  the  contract  in  law  as  against  a  purchaser  who  was  ignorant  of  the 
agent's  private  instructions,  and  relied  ujwn  his  general  apparent  powers.  In 
Leslie  v.  Tompson,  9  Hare,  2G8,  which  was  a  suit  to  enforce  a  contract  against 
the  vendor,  the  vendor's  solicitor  had  prepared  a  description  of  the  land  from  a 
previous  one,  which  had  been  drawn  up  by  anothei*  attorney  from  a  report  made 
by  a  surveyor,  and  the  land  was  contracted  to  be  sold  in  conformity  -with  such 
description  ;  which,  however,  was  found  to  be  erroneous  as  to  the  quantity — 
whereupon  the  court  refused  to  enforce  against  the  vendor  unless  the  pui'cha.«er 
would  agi-ee  to  a  compensation.  And  see  Alvanley  v.  Kinnaird,  2  McN.  &  G.  7, 
per  Lord  Cottenham  ;  Helsham  v.  Langley,  1  Y.  &  C.  C.  C.  175  :  Neap  v.  Abbott, 
C.  P.  Cooper  Rep.  (1837-8)  333.  In  Baxendale  v.  Seale,  19  Beav.  601,  a  veiulor 
contracted  to  sell  an  estate,  not  knowing  its  exact  extent  or  the  location  of  its 
boundaries,  and  both  parties  at  the  time  having  an  ei-roneous  supposition  as  to 
what  was  included  in  it ;  it  was  found  to  contain  a  vei-y  valuable  ju-operty,  which 
the  vendor  did  not  know  was  a  portion  of  it ;  a  specific  jierformance  was  refused 
at  the  suit  of  the  vendee  The  case  of  Howell  v.  George.  1  Mad.  1,  is  notewoi'thy, 
since  the  mistake  upon  which  the  decision  turned  was  purely  one  of  law.  A 
tenant  for  life,  under  a  settlement  of  a  cei-tain  property — the  settlement  con- 
tained a  provision  that  if  he  should  purchase  another  tract  of  land  in  .some  con- 

341 


THE   CONTRACT  MUST  BE  FREE  FROM  MISTAKE.  329 

rule.  The  principle  that  a  person  may,  by  his  own  acts,  furnish  the 
grounds  for  defeating  an  obligation,  which  would  otherwise  rest,  upon 
him,  is  well  established  both  in  law  and  in  equity  ;  the  effect  of  a  party's 
voluntary  intoxication  is  a  familiar  example — or  of  temporary  insanity, 
like  delerium  tremens,  brought  about  by  excessive  criminal  indulgence. 

Where  the  defendant  seeks  to  modify  the  terms  of  a  -written 
contract  on  account  of  a  mistake  by  one  or  both  of  the 
parties. 

Sec.  246.  11.  In  all  the  cases  embraced  within  this  subdivision  the 
plaintiff  sues  to  enforce  a  written  agreement  formally  signed  by  the 
defendant,  while  the  defendant,  in  resisting  the  application,  alleges 
in  the  technical  language  of  the  decisions,  "  a  parol  variation  " — 
that  is,  attempts  to  establish  by  parol  evidence  some  modification  of 
the  writing,  either  on  the  ground  that  through  the  mistake  of  one  or 
both  the  parties  the  written  instrument  does  not  accurately  express 
the  real  contract  originally  entered  into,  or  on  the  ground  that  the 
contract  itself  was  originally  made  through  the  mistake  of  one  or 
both  the  parties.  This  latter  ground,  where  the  mistake  is  alleged  to 
have  been  by  the  defendant,  is  evidently  the  one  treated  of  in  the 
preceding  subdivision,  and  the  only  question  connected  with  it  left 
for  discussion  is,  how  far  can  parol  evidence  be  admitted  in  its  sup- 
port. The  first  ground — the  failure  of  the  writing  to  express  the  real 
agreement  entered  into  by  the  parties — and  a  branch  of  the  second, 
that  the  agreement  was  originally  made  through  a  mistake  on  the 
part  of  the  plaintiff,  have  not  yet  been  discussed. 

venient  place  of  value  equal  to  or  greater  than  that  contained  in  his  settlement, 
and  should  settle  it  in  fee  simple  in  accordance  with  the  existing  settlement,  then 
the  land  comprised  in  the  existing  settlement  should  become  his  property  abso- 
lutely. He  supposed  that  this  provision  gave  him,  in  concurrence  with  his  wife, 
the  absolute  power  of  disjiosition  over  the  settled  estate,  and  therefore  entered 
into  a  contract  to  sell  it.  The  suit  was  brought  by  the  purchaser  to  compel  a 
si)Pcifi(t  performance.  Now,  although  the  vendor  had  not  the  power  to  sell  which 
he  sui)pn,sed.  yet  it  was  possible  for  the  court  to  work  out  the  plaintiff's  equity  in 
a  roundabout  way.  It  could  direct  the  vendor  to  buy  another  estate  of  pi-oper 
value,  and  settle  it  in  a  proper  manner,  so  as  to  take  the  place  of  the  original  one, 
and  this  could  be  done  under  the  supervision  of  one  of  the  masters.  This  being 
done,  the  vendor  would  be  the  owner  of  the  first  land,  and  able  to  perform  his 
contract.  The  plaintiff  asked  the  court  to  compel  this  proceeding  ;  but  the  court, 
Sii"T.  Pldmer,  refused  to  make  such  a  decree,  and  relieved  the  vendor.  See,  also, 
Western  R.  R.  v.  Babcock,  6  Mete.  346  ;  Post  i\  Leet,  8  Paige.  337.  Mortimer  v. 
Pritchard,  1  Bailey's  Eq.  .^05,  is  somewhat  different  in  i-espect  to  the  mistake  for 
which  defendant  can  be  relieved,  holding  that  it  must  be  one  made  under  the 
influence  of  false  appearances,  and  not  merely  from  the  operations  of  the  party's 
own  mind  alone — in  other  words,  it  must  be  prompted  by  the  plaintifTs  acts  or 
conrTuct.  See,  also.  Webster  -?».  Cecil,  30  Beav.  62 ;  Butterworth  v.  Walker,  13  W. 
R.  168 ;  Moxey  v.  Bigwood,  12  W.  R.  811  ;  Park  v.  Johnson,  4  Allen,  259. 
842 


330  SPRCIHC    PERFORMAyCK    OF   COyTKACTS. 

Where  the  written  agreement  fails  to  express  the  real  contract. 

iSec  247.  1.  Wliere  the  iikiiutitl  buca  to  eururt-o  a  written  cuutrart 
regularly  and  formally  signed,  and  the  defendant  alleges  and  proves  by 
parol  evidence  that  the  parties  verbally  entered  into  a  certain  agreement , 
which  was  intended  to  be  put  into  a  written  form,  but  that  in  reducing 
it  to  writing  some  error  or  mistake  was  made,  overlooked  at  the  time 
of  signing  the  instrument,  whereby  the  written  contract  in  suit  fails 
to  express  the  real  agi'eement  of  the  parties  as  originally  made,  these 
facts  will  defeat  the  specific  performance  demanded  by  the  plaintiff; 
and  if  the  defendant  goes  on  and  clearly  proves  by  his  parol  evidence 
that  the  written  contract  in  suit  modified  or  varied  in  the  manner 
alleged  by  him,  constitutes  the  original  and  true  agreement  made  by 
the  parties,  the  court  may  not  only  negatively  reject  the  plaintifTs 
vei'sion,  but  may  affirmatively  adopt  the  version  of  the  defendant, 
and  decree  a  specific  execution  of  the  contract  which  ha  has  alleged 
and  proved.  It  cannot,  perhaps,  be  said  that  the  court  is  always 
bound  to  grant  such  affirmative  relief  to  the  defendant  in  the  plain- 
tiff's suit.  Under  the  old  chancery  practice  it  would  rather  be  dis- 
cretionary with  the  court.  Under  the  reformed  procedure,  however, 
which  provides  for  the  granting  of  affirmative  relief  either  legal  or 
equitable  to  defendants,  and  which  has  introduced  the  doctrine  of 
legal  and  equitable  counter-claim,  such  a  decree,  the  facts  being 
sufficiently  proved,  is  a  inatter  of  course  and  of  right. (1) 

(1)  In  Joynes  v.  Statham,  3  Atk.  388,  in  a  suit  to  enforce  a  written  contract  to 
give  a  lease  at  a  certain  annual  i-ent,  defendant  alleg-ed  that  the  writing* 
should  have  contained  a  provision  to  the  effect  that  the  plaintiff,  the  lessor,  was 
to  pay  all  the  taxes,  which  had  been  omitted  by  mistake,  and  proved  his  allega- 
tions. Lord  Hardwicke,  in  granting  a  specific  perfoi-mance,  canned  out  the 
defendant's  contention  by  directing  a  covenant  to  that  effect  to  be  inserted  in  the 
lease.  In  Fife  v.  Clayton,  13  Ves.  646,  when  plaintiff  sought  the  specific  perfoi-in- 
ance  of  a  contract  to  sell  an  estate,  and  the  defendant  alleged  and  proved  an 
important  variation  in  the  writing  from  the  true  agreement  as  originally  made,  the 
plaintiff  thereu2:)on  offered  to  have  his  suit  dismissed,  l)ut  the  court  decreed  a 
specific  execution  of  the  contract  according  to  defendant's  version,  so  that  ln' 
would  not  be  jiut  to  the  ti-ouble  and  expense  of  a  ci-oss-bill ;  and  see  Gwynn  /•. 
Lethbridge,  14  Ves.  585.  In  Bradford  v.  Union  Bk.  of  Tenn.,  13  How.  (U.  S.)  57. 
the  same  decision  was  made,  it  being  held  that  tmder  such  circumstances  tlie 
defendant  was  entitled  to  a  specific  performance  of  the  contract  as  alleged  and 
clearly  proved  by  him,  vai-ying,  as  it  does,  from  the  one  set  forth  by  the  jilain- 
tiff,  even  when  the  plaintiff  claimed  to  have  his  bill  dismissed.  See,  also.  Wells 
V.  Cruger,  5  Paige,  1(54  ;  Fenissac  i\  Thoi-ii.  1  Barb.  44  ;  Bradbui-y  v.  White.  4 
Green  Ch.  (N.  J.)  391  ;  Arnold  v.  Ai-nold.  2  Dev.  Eq.  467.  In  McComas  v.  Eiu^h-y, 
21  Gratt.  23,  the  power  of  the  court  t(>  relieve  the  defendant  was  asserted,  although 
the  case  is  not  a  dii-ect  authority  for  the  propositions  contained  in  the  text,  siniv 
the  conti'act  sought   to  b(!    eriforciid  l>y    the    jil.-tiiitiff  was    wholly  \crbril.  ami   he 


THR    CONTRACT  MCST  BE  FREE   FROM  MISTAKE.  831 

Reforming  the  contract  in  case  of  such  a  mistake. 

JSec,  248.  This  species  of  mistake  is  the  occasion  for  another  equitable 
remedy,  which,  although  not  belonging  to  the  puri)oseof  this  book,  may- 
be briefly  noticed.  Where  the  jmrties  have  verbally  entered  into  an 
agreement  without  any  error  in  reference  to  its  subject-matter  or  its 
terms,  but  in  putting  it  into  a  written  form  a  mistake  occiu-s  common  to 
both  of  them,  and  not  perceived  at  the  time  of  signing  the  instrument, 
whereby  such  writing  fails  to  express  the  real  agreement  between 
them,  this  fact  furnishes  no  ground  for  a  rescission,  because  there  is  a 
subsisting  agreement ;  but  it  furnishes  a  ground  for  the  remedy  of 
reformation  or  correction  at  the  suit  of  either,  whereby  the  written 
instrument  shall  be  made  to  correspond  with  the  actual  agreement  as 
originally  made.  In  obtaining  such  relief,  both  the  error  and  the 
correction  to  be  made  in  the  writing  must,  of  course,  be  established 
by  means  of  parol  evidence. (1)     The  case  described  in  the  latter  part 

relied  upon  a  part  pei-formance.  There  may  be  some  analog'y,  however,  between 
a  contract  .n  writing'  as  required  by  the  statute  of  frauds,  and  a  verbal  contract 
part  performed  so  as  to  uplift  the  prohibition  of  the  statute.  The  plaintiff 
alleged  a  certain  verbal  contract,  and  gave  proof  of  part  performance.  Defend- 
ant set  up  in  his  answer,  and  proved  on  the  hearing",  a  verbal  contract  consider- 
ably different  in  its  tei-ms  fi-om  that  asserted  by  the  bill.  The  acts  of  part  per- 
formance could  be  applied  to  either  version,  and  in  respect  to  them  there  was  no 
substantial  dispute.  The  court  held,  that  it  might  either  dismiss  the  suit,  so  that 
the  plaintiff  would  be  obliged  to  sue  again  upon  the  actual  agreement,  or  might 
pei-mit  the  plaintiff  to  elect  to  have  the  contract,  as  i^roved  by  the  defendant, 
specifically  enforced  ;  that  in  such  cases  the  court  would,  as  a  genei-al  rule, 
decree  a  specific  performance  of  the  contract  as  actually  proved  by  the  whole 
evidence.  In  Quinn  v.  Roath,  37  Conn.  16,  the  matter  of  proving  verbal  modifica- 
tions by  either  party  in  a  written  contract,  was  thoroughly  discussed  ;  and  the 
court  held,  that  a  plaintiff,  enforcing  a  written  contract  for  the  sale  of  land,  must 
accept  the  parol  modifications  of  it  which  the  parties  had  made  ;  that  plaintiff  is 
not  allowed  the  same  indulgence  in  introducing  parol  evidence  of  such  modifica- 
tions that  is  given  to  the  defendant,  who  defends  against  the  contract  in  suit,  and 
offers  to  show  verbal  stipulations  varying  or  limiting  it ;  that  the  defendant  may 
also  prove  such  verbal  stipulations  as  have  induced  him  to  sign  the  contract.  See, 
also.  Murphy  v.  Rooiiey,  45  Cal.  78.  See,  also,  Mai-tin  v.  Pycroft,  2  DeG.  M.  & 
G.  785;  Winch  v.  Winchester,  1  V.  &  B.  375;  Manser  •».  Back,  G  Hare,  443 ; 
Marquis  of  Townshend  v.  Stangroom,  6  Ves.  328  ;  Vouillon  v.  States,  2  Jur.  (N.  S.) 
845  ;  Wood  v.  Scarth,  2  K.  &  J.  33  ;  Barnard  v.  Cave,  26  Beav.  253 ;  Webster  ■». 
Cecil,  30  Beav.  62  ;  Price  v.  Ley,  4  Giff.  235  ;  32  L.  .].  (N.  S.)  Ch.  530  ;  Patterson 
V.  Bloomer,  35  Conn.  57  ;  Best  v.  Stow,  2  Sandf.  Ch.  298  ;  Ryno  v.  Darby,  5  C.  E. 
Green,  231 ;  Chambers  v.  Livermore,  15  Mich.  381  ;  Huntington  v.  Rogers,  9 
Ohio  St.  511,  516. 

(1)  Murray  v.  Parker,  19  Beav.  305.     In  Calverly  ^i.  Williams,  1  Ves.  210,  it  was 

claimed  by  one  side  and  denied  liy  the  otlicr,  that  a  certain  seven  acres  were 

included  in  the  land  contracted  to  be  sold,  and  ought  to  have  been  so  expressed 

in  the  writing.     Lord  Thuklow  said,  that  if  the  parties  had  mistaken  each  other, 

344     . 


332  SI'KCIF/C   FKI{F0I:MA.\('H    of   <0.\Th'ACTS. 

of  the  preceding  paragrapli  of  enforcing  performance  of  the  contract  as 
nioditied  by  the  defendant's  allegations  and  proofs,  is  merely  a  s[»ecial 
instance  of  this  general  doctrine  ;  since  the  court,  th(Mi,  actually 
reforms  the  written  contract  set  u[)  l)y  the  plaint) If,  in  accdidaiioc  wiili 
the  defendant's  contention,  and  then  enforces  it  as  thus  corrected. 
But  the  remedy  is  not  conliucd  to  such  sujts,  and  is,  in  fact,  generally 
granted  at  the  demand  of  the  plaintilf  iu  actions  brought  for  that 
express  jjurpose. 

one  understanding-  one  way  and  the  other  understanding-  the  other  way,  tlu^  con- 
tract must  be  rescinded.  "On  the  other  hand,  if  both  understood  the  whole  was 
to  be  conveyed,  it  must  be  conveyed.  But,  again,  if  neither  undoivstood  so — if 
the  buyer  did  not  imagine  he  was  buying,  any  more  than  the  seller  iniagined  he 
was  selling,  this  part — then  the  pretense  to  have  the  whole  conveyed  is  jus  con- 
trary to  good  faith  upon  his  side  as  the  refusal  to  sell  would  be  in  the  othei*  cafte." 
In  llenkle  v.  Rdyal  Exchange  Assurance  Co.,  1  Ves.  Sen.  317,  where  the  a.'^sured 
thought  to  lefbriii  a  policy  on  account  of  a  common  mistake,  so  as  to.  make  the 
insurer  liable  for  the  loss.  Lord  IIardwickk  said  :  "No  doubt  but  this  court  has 
jurisdiction  to  i-elieve  in  respect  of  a  plain  mistake  in  contracts  in  writing,  as  well 
as  against  frauds  in  conti-acts ;  so  that  if  reduced  into  writing  contrary  to  the 
intent  of  the  parties,  on  proper  proof,  that  would  be  rectitied."  See  Baker  v. 
Paine,  1  Ves.  Sen.  4s6  ;  6  Ves.  336,  n. ;  Wooden  v.  Haviland,  18  Conn.  101  ; 
Chambei'lain  v.  Thomi)son,  10  Conn.  243  ;  Cook  v.  Pre.ston,  2  Root,  78  ;  Cliapman 
V.  Allen.  Kirby,  309 ;  Best  v.  Stow,  2  Sandf.  Ch.  298  ;  Alexander  v.  Newton,  2 
Gi-att.  2C6  ;  Perkins  v.  Dickinson.  3  Gratt.  335  ;  Wet)ster  v.  Harris,  IG  Ohio,  490  ; 
Pugh  V.  Chesseldine,  11  Ohio,  103  ;  Willis  v.  Henderson,  4  Scam.  13  ;  Wyche  v. 
Gi-fc'ie,  16  Geo.  49 ;  Rogers  v.  Atkinson,  1  Kelly.  12 ;  Collier  v.  Lanier,  1  Kelly, 
2L'8  ;  Clopton  v.  Martin,  11  Ala.  137  ;  Mosby  v.  Wall,  23  Miss.  81  ;  Parham  v.  Par- 
liam.  6  Humph.  287  ;  Bellows  v.  Stone,  14  N.  IL  175  ;  Langdonr.  Keith,  9  Vt.  299; 
Blair  v.  McDonnell,  1  Ilalst.  Eq.  327 ;  Firmstone  v.  DeCamp,  2  C.  E.  Green,  317  ; 
Waldi-on  V.  Letson,  2  McCarter,  120;  Chew  r.  Gillespie,  6  P  F.  Smith,  308; 
Gumji's  Appeal,  15  P.  F.  Smith,  476 ;  Irick  v.  Fulton,  3  Gratt.  193 ;  Brown  v. 
Bonner,  8  Leigh,  1  ;  Stone  v.  Hale,  17  Ala.  557;  Larkins  t).  Biddle,  21  Ala.  2.52; 
Lauderchile  V.  Hallock,  7  Sm.  &  Mar.  622;  Ross  ?•.  Wilson,  7  Sm.  &  Mar.  753; 
Wurzburger  ?'.  Meric,  20  La.  An.  415;  Mattingly  v.  Speak,  4  Bush,  316;  McCana 
V.  Letcher,  8  B.  Mon.  320  ;  Mills  v.  Lockwood,  42  111.  Ill  ;  McCloskey  v.  McCoi-- 
mick.  44  111.  336;  Kuchenbeiser  «.  Beckert,  41  111.  172;  Cleai-y  v.  Babcock,  41 
III.  271;  McDonald  v.  Starkey,  42  111.  442;  Shively  v.  Welch,  2  Oregon,  288; 
Bradford  v.  Union  Bank,  13  How.  (U.  S.)  57,  66.  It  has  often  been  said,  that  in 
order  to  grant  the  remedy  of  i-eformation  the  mistake  must  have  been  mutual. 
See  Lyman  v.  United  States  Ins.  Co.,  17  Johns.  373  ;  Nevius  ?i.  Duidap,  33  N.  Y. 
676  ;  Wemple  v.  Stewart,  22  Barb.  154  ;  Lanier  v.  Wyman,  5  Roberts,  147  ;  Cooper 
V.  Farmers'  Ins.  Co.,  14  Wright,  299.  But  this  mode  of  stating  the  rule  is  not 
sti'ictly  accni-ate,  since  a  refoi-mation  may  be  granted  in  favor  of  one  paity,  who 
alone  was  mistaken,  when  his  mistake  was  the  i-esult  of  the  otlK^r's  misleading 
conduct  or  lan^niage.  Ri(l(!r  v.  Powell,  2S  N.  Y.  310;  Matthews  i\  Terwilleger,  3 
Bar!).  50  ;  Wiswall  v.  Hall,  3  Paige,  313  ;  De  Peyster  v.  H,asl)r(nick,  1  Kern.  582. 
The  true  ruh;,  as  gathered  from  the  decisions,  is  the  following  :  Both  parties  must 
have  entered  into  one  and  the  same  contract,  each  midei-standingly  assenting  to 
the  same  terms,  and  the  written  instrument  must,  without  the  knowledge  of  the 

845 


THE    CONTRACT  MUST  BE   FREE   FROM  MISTAKE.  333 

Sec.  249.  It  is  well  settled  that  in  such  case  pavol  evidence  is 
admissible  to  show  the  common  mistake  of  both  the  parties  in  the 
written  instrument  and  to  supply  the  means  of  correcting  it,  whether 
for  purposes  of  defense  merely  or  of  obtaining  the  affirmative  remedy 
of  a  reformation. (1)  In  order,  however,  to  overcome  in  this  manner 
the  inherent  force  of  a  written  contract  and  to  j^rocure  a  variation  of 
its  terms,  the  parol  evidence  of  the  mistake  and  of  the  alleged  modifi- 
cation must  be  clear  and  convincing ;  and,  in  the  language  of  the 
decisions,  "  the  strongest  possible,"  or  else  the  mistake  must  be  admit- 
ted by  the  opposite  party.  (2)  If  an  executed  deed  is  to  be  corrected 
by  a  w^riting  whicli  is  offered  in  evidence,  and  a  latent  ambiguity  arises 

party  seeking  relief,  fail  to  express  the  real  contract  j  must,  in  some  way,  depart 
from  the  terms  to  which  the  common  assent  had.  been  given.  In  order  that  the 
doctrine  of  reformation  should  apply,  it  is  absolutely  essential  that  in  making* 
their  original  agreement,  both  parties  should  understand  its  terms  and  its  subject- 
matter  alike  ;  that  the  minds  of  both  should  meet  upon  the  same  points.  If  the 
minds  of  both  parties  did  not  cjree — if  one  of  them  mistook  or  misunderstood  one 
or  moi'e  of  the  terms  of  the  original  contract — the  remedy,  if  any,  would  be  rescis- 
sion and  not  reformation  ;  for  a  reformation  requires  that  the  parties  should  have 
originally  made  a  valid  and  binding  conti-act,  in  accordance  with  which  the  coui't 
can  reform  the  mistaken  written  instrument  before  it.  Henkle  v.  Royal  Ex.  Ins. 
Co.,  1  Ves.  Sen.  317  ;  Marquis  Townshend  v.  Stangroom,  6  Ves.  328  ;  Dinian  v. 
Providence  R.  R.,  5  R.  I.  130,  135  ;  Sawyer  v.  Hovey,  3  Allen,  331 ;  Gillespie  v. 
Moon,  2  Johns.  Ch.  595  ;  Tesson  v.  Atlantic  Ins.  Co.,  40  Mo.  33  ;  Woodbury 
Savings  B'k  v.  Insurance  Co.,  31  Conn.  517  ;  CofRng  v.  Taylor,  16111  457 ;  Welles 
V.  Yates,  44  N.  Y.  525.  An  erroneous  description  or  designation  of  the  subject^ 
matter,  or  of  some  part  thereof,  whether  made  by  the  parties  or  by  the  scrivner, 
may  be  corrected.  Bradford  v.  Union  B'k,  13  How.  (U.  S.)  55  ;  Winnipisseogee, 
etc.,  Co.  -y.  Perley,  46  N.  H.  83  ;  Gillespie  v.  Moon,  2  Johns.  Ch.  580  ;  Wiswall  v. 
Hall,  3  Paige,  313  ;  White  v.  Wilson,  6  Blackf.  448  ;  Stewart  v.  Brand,  23  Iowa, 
477  ;  Young  v.  Coleman,  43  Mo.  179  ;  Raines  v.  Calloway,  27  Tex.  678  ;  Smith  v. 
Jordan,  13  Minn.  264.  These  general  doctrines  as  to  the  remedy  of  reformation 
are,  of  course,  applicable  to  all  cases  where  either  the  defendant  or  the  plaintiff 
in  a  suit  for  a  specific  performance  seeks  to  have  the  contract  reformed,  and  then 
specifically  executed  as  thus  corrected. 

(1)  Lady  Shelburne  v.  Lord  Inchiquin,  1  Bro.  C.  C.  341,  per  Loi'd  Thurlow  :  "  I 
think  it  impossible  to  refuse  as  incompetent  parol  evidence  which  goes  to  prove 
that  the  words  taken  down  in  writing  were  contrary  to  the  concurrent  intention 
of  all  the  parties." 

(2)  Henkle  v.  Royal  Exchange  Ass.  Co.,  1  Ves.  Sen.  317  ;  Willan  v.  Willan,  16 
Ves.  72  ;  Fowler  v.  Fowler,  4  DeG.  &  J.  265  ;  Mortimer  v.  Shortall,  2  Dr.  &  W. 
363,  374  ;  Pitcairn  v.  Ogbourne,  2  Ves.  Sen.  375,  379  ;  Marquis  Townshend  v.  Stan- 
groom,  6  Ves.  333,  jier  Lord  Eldon  ;  Vouillon  tJ.  States,  25  L.  J.  Ch.  875;  U.  S.  v. 
Munroe,  5  Mason,  572  ;  Lyman  v.  United  Ins.  Co.,  2  Johns.  Ch.  630  ;  Griswold  x>. 
Smith,  10  Vt.  452  ;  Lyman  v.  Little,  15  Vt.  576  ;  Preston  v.  Whitcomb,  17  Vt.  183 ; 
Cleavland  v.  Burton,  11  Vt.  138  ;  Kennedy  v.  Umbaugh,  Wright,  327  ;  Gray  v. 
Woods,  4  Blackf.  432 ;  Triplett  v.  Gill,  7  J.  J.  Marsh.  432  ;  Harrington  v.  Hari-ing- 
ton,  2  How.  (Miss.)  701 ;  Hunt  v.  Rousmanier,  1  Pet.  1 ;  Durant  v.  Bacot,  2  McCar- 
ter,  411 ;  Hall  v.  Claj^-ett,  2  Md.  Ch.  152 ;  Philpot  v.  Elliott,  4  Md.  Ch.  273 ;  Beebe 
V.  Young,  14  Mich.  136  ;  Tessou  v.  Atlantic  Ins.,  40  Mo.  33,  36. 

346 


334  SPEClhlV    PKRBORMANCK    OF  COATRAC'JS. 

from  some  phrase  or  provision  of  such  writing,  parol  evidence  is  admis- 
sible to  remove  the  ambiijuity  and  thus  perfect  the  required  cor- 
rection.(1) 

Mutual  mistake  as  to  the  subject-matter. 

isEC.  250.  2.  ^Vllcro  there  is  no  pretense  that  the  written 
instrument  does  not  express  the  real  contract  as  it  was  entered 
into,  but  the  parties  at  the  time  of  making  their  agreement, 
which  was  afterwards'  reduced  to  writing,  were  both  laboring 
under  a  mistake  concerning  the  subject-matter,  the  contract  thus 
affected  by  such  mistake  will  not  be  enforced.  There  is  really  no 
contract,  for  there  was  no  intelligent  consent.  Performance'  will, 
therefore,  be  refused  on  the  objection  of  the  defendant,  or  the  remedy 
of  rescission  will  be  granted  at  the  suit  of  either  party.(2)     This  is 

(1)  Murray  v.  Parker,  19  Beav.  305.  [In  Hug-er  v.  Lee,  40  Mirh.  3.'*:},  the  deed 
described  the  lands  by  metes  and  bounds,  but  by  mistake  the  description  did  not 
include  all  the  land  described  in  the  contract,  which  purported  to  convey  "the 
south  half  of  the  fruit  farm  of  the  vendor,"  being  a  portion  of  a  section  ac.cording 
to  a  government  survey  ;  a  bill  for  conveyance  of  the  remainder  of  the  south  half 
was  sustained.  See,  also,  Lyman  v.  Gedney,  114  111.  388  ;  Cossit  v.  Ilobbs,  56 
111.  231 ;  but  see  Wliite  v.  Williams,  48  Barb.  222.] 

(2)  Jones  v.  Clifford,  L.  R.  3  Ch.  D.  779,  788,  per  Hall,  V.C.  Suit  by  vendor 
for  a  specific  performance.  The  parties  made  a  contract  of  sale  by  which  it  wjis 
agreed  that  it  should  be  assumed  that  E.  N.  was  in  1841  the  owner,  and  that 
the  vendee  should  net  inquire  beyond  him  for  title.  Both  parties  supposed  that 
E.  N.  was  the  soui-ce  of  title,  and  both  were  equally  mistaken.  Before  completion 
the  defendant — the  vendee — discovered  that  E.  N.  never  was  owner,  but  that  he 
himself,  the  defendant,  was  the  owner  in  fee,  subject  to  a  leasehold  interest  in 
the  vendoi",  and  refused  to  complete.  The  vendor  sued  to  enforce — no  fraud  was 
pretended — a  case  of  common  mistake.  Hdd,  that  as  the  mistake  was  common, 
defendant  could  raise  the  objection,  and  a  specific  pei-formance  must  be  refused. 
Semble,  that  even  in  case  of  a  completed  contract,  relief  will  be  granted  against 
a  common  mistake  without  fraud.  See  a  very  full  examination  of  authorities  and 
discussion  of  the  doctrine  by  V.  C.  Hall.  In  Davis  v.  Shephei-d,  L.  R.  1  Ch.  410, 
the  owner  of  land  agreed  to  demise  to  A.  the  minerals  west  of  a  cei-tain  "fault" 
supposed  to  run  through  the  land  in  a  certain  direction,  the  amount  of  land  west 
of  said  "fault"  being  described  as  "supposed  to  be  83  acres  or  thereabouts."  He 
also,  at  the  same  time,  agreed  to  demise  to  B.  the  minerals  east  of  the  same  "  fault,' 
the  land  east  thereof  being  supposed  to  be  98  acres.  The  fault  was  afterwards 
found  to  run  in  such  a  manner  that  only  eight  acres  of  land  was  left  lorst  of  it, 
and,  of  course,  much  more  than  98  acres  east  of  it.  The  question  in  the  suit  was 
whether  B.  was  entitled  to  all  the  minerals  east  of  the  fault,  although  b(;yond  the 
original  98-acre  portion  of  the  surface  and  within  the  said  83  acres.  All  the  par- 
ties were  equally  mistaken  as  to  the  real  course  of  the  "fault."  Held,  that  B. 
was  not  thus  entitled  to  such  minerals  outside  of  the  98  acres,  although  on  the 
east  of  the  fault.  This  case,  although  largely  turning  upon  a  question  of  con- 
struction, is  a  good  illustration  of  a  common  mistake  as  to  the  subject-matter- 
See,  also,  Harnett  v.  Baker,  L.  R.  20  Eq.  50,  a  case  of  common  mistake  as  to  the 
title  on  account  of  which  a  specific  performance  was  refused.  In  Calverlcy  r.\Vil- 
liams,  1  Ves.  210,  a  vendee  claimed  that  a  certain  seven  acres  was  included  in  a 
contract  of  sale  ;  that  it  w;vs  emliraced  in  the  advertisement,  being  therein 
described  as  in  the  possession  of  one  G.  The  vendor  insistecl  that  he  tiiil  not 
intend  to  include  this  piece  of  land,  nor  know  that  it  was  in  possession  of  the 
said  G.  Lord  THORLOwsaid:  "No  doubt,  if  one  party  thought  he  had  pur- 
chased bona  fide,  and  th«  other  party  thought  he  had  not  sold,  that  is  a  grounij 

347 


THE    CONTRACT  MUST   BE   FREE  FROM  MISTAKE.  335 

a  different  case  from  that  mentioned  in  the  note  under  section  248. 
In  that  case  the  parties  a-eally  agree  as  to  the  subject-matter,  and  the 
mistake  consists  in  its  description  or  designation  in  the  writing ;  in  this 
case  there  is  no  agreement  with  respect  to  it ;  the  parties  are  in  error 
concerning  it  from  the  beginning,  so  that  their  minds  never  meet. 

Mutual  misunderstaning  of  the  contract. 

bEC.  251.  3.  If  thera  is  no  pretense  of  an  error  in  reducing  the  agree- 
ment to  writing,  nor  any  common  mistalve  as  to  its  subject-matter — tliat 
is,  both  parties  laboring  under  the  same  misconception,  but  the  defend- 
ant shows,  by  means  of  his  parol  evidence,  that  there  was  a  mutual  mis- 
understanding— or,  in  other  words,  that  one  party  understood  one  thing 
and  the  other  party  another  thing,  in  respect  to  the  terms  or  tlie  matters 
embraced  within  tlieni,  it  is  plain  that,  in  such  a  case,  there  has  been  no 
meeting  of  minds  on  1  he  same  point,  and  the  court  will,  on  the  defendant's 
objection,  refuse  a  specific  performance,  without  considering  or  deciding 
winch  of  the  two  parties  is  right  or  reasonable  in  his  version.  It  is 
the  mere /ac^  of  a  substantial  disagreement  which  destroys  the  consent 
necessary  to  the  existence  of  a  binding  agreement,  and  thus  furnishes 
a  defense; — which  one  of  the  parties  is  correct  is  wholly  immaterial. 
Of  course,  the  misunderstanding  must  be  in  reference  to  matters 
of  fact,  and  not  a  mere  misconception  as  to  a  rule  of  law,  or  as  to 
the  legal  effect  of  the  contract,  or  of  any  term.(l)     Even  where  it  is 

to  set  aside  the  contract,  that  neither  party  may  be  damaged ;  tecause  it  is 
impossible  to  say,  one  shall  be  forced  to  give  that  price  fOr  part  whi(;h  he 
intended  to  give  for  the  whole,  or  that  the  othei-  shall  be  obliged  to  sell  the  whole 
for  what  he  intended  to  be  the  price  of  part  only."  In  Hitchcock  i\Giddings,  4 
Price,  135,  a  contract  was  made  foi-  the  sale  of  the  remainder  in  fee  after  an 
estate  tail;  both  parties  were  ignorant  that  the  tenant  in  tail  had  suffei-ed  a 
recovei-y,  and  there  was  no  remaindei-  left — the  contract  was  rescinded.  In  Dale 
V.  Roosevelt,  5  Johns.  Ch.  174 ;  2  Cow.  129,  one  pai-ty  covenanted  to  pay  an  annuity, 
and  in  consideration  conveyed  lai^d  supposed  to  contain  a  coal  mine  ;  no  coal  mine 
being  within  the  land,  a  collection  of  the  annuity  was  perpetually  enjoined.  In 
Marvin  v.  Bennett,  8  Paige,  312,  the  subject  was  fully  discussed,  and  it  was  held 
that  equity  would  rescmd  in  cases  of  mutual  mistake  in  agreements  of  sale,  when 
the  subject-matter  did  not  exist  at  all,  or  was  so  materially  diilerent  from  what  it 
was  supposed  as  to  defeat  the  object  of  the  purcliase  ;  and  in  Lawrence  v.  Staigg, 
8  R.  I.  256,  it  was  held  that  a  mutual  mistake  as  to  gwaw^ii;/ was  a  sufficient  ground 
for  a  rescission,  and  a  fortiori  for  defeating  a  specitic  perfoi-mance.  [See,  also* 
Cuff  V.  Dorland,  50  Barb.  438 ;  Boynton  v.  Ilazelboom,  14  Allen,  107 ;  Taylor  v. 
Fleet,  1  Barb.  471 ;  Burkhalter  v.  Jones,  32  Kan.  5  (vendor  believed  he  was  con- 
ti-acting  to  sell  for  $2,100,  and  the  vendee  for  §2,000) ;  McFarlane  v.  "Williams,  107 
111.  33  (mistake  by  miscalculation  on  a  basis  adopted  by  both  parties) ;  Old  Colony 
R.  Vi.  V.  Evans,  6  Gray,  25  (benefit  of  the  mistake  may  be  waived  by  subsequent 
acts).l 

(1)  In  Wycombe  Ry.  Co.  /;.  Dounington  lIosi)ital.  L.  R.  1  Ch.  268,  the  doctrine 
was  stated  that  when  one  ])arty  proves  that  he  understood  the  agi-eement  in  a 
diffei-ent  sense  from  the  othei-,  a  specific  ])erforinance  will  be  refused,  without 
considering  whether  oi-  not  the  defendant's  construction  is  a  reasonable  one.  See, 
also,  Alvanley  v.  Kinnaird,  2  McN.  &  G.  1  ;  Baxendale  v.  Seale,  19  Beav.  601 ; 
Helshani  v.  Langley,  1  Y.  &  C.  C.  C.  175 ;  Manser  v.  Back,  6  Hare,  443 ;  Malins 
•u-  Freeman,  2  Keen,  25  ;  Ball  r.  Storie,  1  S.  &  S.  210 ;  Leslie  v,  Thompson.  9  Hare, 
348 


836  SPECIFIC  PERFORMANCE   OF  COyTHAC'IS. 

doubtful  whether  both  parties  understood  the  contract  iu  the  same 
manner,  the  relief  of  specilie  enforcement  will  be  withheld,  because 
courts  of  equity  require  a  clear,  certain,  unquestionable  case  of  right, 
before  they  will  administer  this  special  remedy. (I)  The  same  deci- 
sion will  be  made  of  a  suit  where  defenchint  shows  by  his  parol 
evi<len<'e  that,  for  any  reason,  the  agreement,  as  alleged  by  the  plain- 
tiff, ought  not  to  be  performed,  but,  at  the  same  time,  from  any  cir- 
cumstances, it  would  be  unfair  or  ineiiuitable  to  adopt  and  (Miforcc  the 
version  of  the  contract  maintained  by  the  d(^fendant ;  in  such  a  case, 
as  affirmative  relief  cannot  equitably  be  given  to  either,  the  only 
alternative  is  a  dismissal  of  the  plaintiff's  suit.(2) 

Mistake  by  the  defendant  alone. 

iSEC  2.")2.  4.  Where  it  appears  from  the  parol  evidence  offered  in 
defense,  that  the  defendant  alone  was  mistaken ;  that  the  contract 
was  entered  into  by  him  under  a  mistake,  the  court  has  a  discretion 
either  to  deny  a  specilic  performance  entirely,  or  to  enforce  the  agree- 
ment as  modified  in  accordance  with  the  defendant's  contention  ;  in 
other  words,  to  ado[)t  the  defendant's  version  and  decree  its  specific 
execution.  This  discretion  is  usually  exercised  by  giving  the  plaintiff 
his  option  either  to  have  his  suit  dismissed,  or  to  have  a  performance 
of  the  contract  as  varied  by  the  defendant's  evidence. (S).     In  analogy 

268  ;  Swaisland  v.  Dearsley,  29  Beav.  430  ;  Wehster  v.  Cecil,  30  Beav.  02  ;  Clowes. 
V.  Hig-g-inson,  1  V.  &  B.  524 ;  Gillespie  v.  Moon,  2  Johns.  Ch.  505 ;  Sawyer  v. 
Hovey,  3  Allen,  331  ;  Diman  v.  Pi-ovidence  R.  R.,  5  R.  I.  130,  135;  Wooilbiny 
Saving's  B'k  v.  Insurance  Co.,  31  Conn.  517;  Tesson  v.  Atlantic  Ins.  Co.,  40  Mo. 
33  ;  Coffing-  v.  Taylor,  16  111.  457  ;  but  if  an  element  of  fraud  enters  into  the  ti-ans- 
action,  and  is  the  cause  of  the  misunderstanding-,  a  reformation  may  be  g-ivintcMl. 
Wiswall  V.  Hall,  3  Pai^'-e,  313;  De  Peyster  ■?>.  Haslironctk,  1  Kern.  5S7  ;  V.'cllcs  v. 
Yates.  44  N.  Y   .')-25  ;  Rider  v.  Powell,  28  N.  Y.  310. 

(; )  As  in  Coles  v.  Bi-own,  10  Paig-e,  526,  a  piece  of  land  which  had  been  subdi- 
vided into  several  lots,  was  sold  at  auction  to  a  pui-chaser  for  a  certain  sum,  and 
the  \''iidnr,  in  a  suit  for  a  specific  performance,  alleged  and  proved  that  the  land 
was  put  up  and  sold  by  the  lot,  and  the  vendee  insisted  that  he  undei-stood  the 
land  was  put  up  in  one  block,  and  that  he  bid  for  it  at  a  price  intended  to  be  for 
the  fiuire  tract,  and  the  evidence  left  the  matter  doubtful  whether  the  purchaser 
<Hd  !■■)  understand  the  sale  or  not,  the  court  refused  to  enforce  thecontract  against 
h';;i:  ■"■  -e  Lyman  v.  U.  S.  Ins.  Co.,  17  Johns.  3S3,  per  Platt,  J.  ;  James  v.  State 
B  :    ...  1  ;  Ala   O;)  ;  Story  Ecp  Jur.  §  134. 

The  cii-cumstances  may  be  extrinsic  to  the  contract  itself,  in  aildition  to 
(1  a^  to  a  coumiou  understanding-  of  the  parties — such  as  laches,  change  in 

the  situation,  or  relations  of  the  partie.s,  etc.  See  Legal  tj.  Miller,  2  Ves.  Sen.  299  ; 
Price  V  Dyei-,  17  Ves.  364.  In  Garrard  v.  Grinling-,  2  Sw.  244,  the  controlling 
cii-cumstance  was  a  gi-eat  lapse  of  time. 

(3)  Higginson  v.  Clowes,  15  V(>s.  516,  Sir  \Vm.  Grant  laid  down  the  distinction 
expressed  in  the  text,  holding  that  defendant  hail  a  right  to  have  his  own  versiou 

349 


THE    CONTRACT  MUST  BE   FREE   FROM  MISTAKE.  337 

io  this  sale,  or  rather  as  a  particuhir  application  of  it,  if  the  defendant 
supposed  or  understood  that  a  certain  usual  stipulation  or  covenant 
was  implied  from  the  provisions  of  the  contract,  and  such  an  under- 
standing was  from  the  nature  of  the  agreement  or  the  surrounding 
circumstances  a  reasonable  one,  the  insertion  of  such  a  stipulation 
will  be  required  as  tlie  condition  of  a  specific  ])erformance;  that  is, 
the  court  will  treat  the  contract  as  containing  the  clause,  and  enforce 
it  as  thus  niodified.(l) 

Sec.  253.  The  fact  of  his  mistake,  and  the  parol  modification  of  the 
written  contract  made  necessary  thereby,  are,  in  most  instances, 
alleged  by  the  defendant  in  his  answer  by  way  of  defense ;  how  far 
he  may  also,  in  a  proper  case,  demand  and  obtain  affirmative  relief, 
depends  upon  the  rules  of  procedure.  The  mistake  and  consequent 
parol  variation  to  be  made  in  the  contract  may  also,  however,  be  set 
up  in  the  first  instance  by  the  plaintiff  for  the  purpose  of  offering  to 
the  defendant  his  election — of  tendering  him  the  option  either  to 
rescind  the  agreement  entirely,  or  to  submit  to  a  performance  of  it  in 

enforced  whenever  there  has  been  a  mistake  in  the  written  agreement,  and  the 
defendant's  version  of  the  agreement  has  been  adopted  by  the  coui-t ;  but  that 
when  the  court  does  not  decide  in  favor  of  defendant's  version,  but  simply  finds 
the  fact  that  he  had  contracted  under  a  mistake,  then  he  could  only  insist  as  a 
right  upon  a  dismissal  of  the  plaintiff's  bill.  See,  however,  the  report  of  a  sub- 
sequent decision  of  the  same  facts  in  another  case.  Clowes  v.  Higginson,  1  V.  & 
B.  524.  Also,  as  examples  of  the  rule,  Ramsbottom  v.  Gosdon,  1  V.  &  B.  165 ; 
Clarke  v.  Grant,  14  Ves.  519.  In  Lord  Gordon  v.  Marquis  of  Hertford,  2  Mad. 
106,  which  was  a  suit  to  enforce  an  alleged  agreement  of  the  several  defendants 
to  execute  bonds  in  the  amount  of  1.500Z,  the  defendants  showed,  by  parol  evi- 
dence, that  the  agreement  ought  to  have  been  for  a  joint  bond  in  that  sum  made 
by  all,  the  court  gave  the  plaintiff  his  election  to  have  his  bill  dismissed,  or  to 
have  a  decree  enforcing  the  agreement  to  give  a  joint  bond.  In  Clarke  v.  Moore, 
1  Jon.  &  Lat.  723.  the  plaintiff  sues  to  enforce  an  agreement  to  take  j».  lease,  and 
defendant  proving  a  parol  bargain  for  a  diminution  of  the  rent,  which  was  ad- 
mitted by  the  plaintiff,  the  decree  was  for  a  lease  at  the  lower  rent.  In  London 
&  Birmingham  R'y  Co.  v.  Winter,  Cr.  &  Ph.  57,  a  performance  was  decreed  in 
accordance  with  a  parol  addition  to  the  written  contract  proved  by  the  defendant 
anil  admitted  by  tlie  plaintill'.  [^ee.  alno.  Park  v.  Johu-son,  4  Aden,  251) ;  Gilroy 
V.  Alls,  22  Iowa,  174.] 

(1)  As,  for  example,  a  usual  covenant  may  thus  be  inserted  in  a  lease  the  execu- 
tion of  which  is  ordered.  Ricketts  d.  Bell,  1  DeG.  &  Sm.  3o5.  When  a  covenant 
for  renewal  contained  in  a  lease  originally  given  150  years  before,  had  been  by 
the  plaintiff  and  his  ancestors,  during  all  that  time,  uniformly  acted  upon  in 
renewing  the  lease  to  the  defendant  and  his  predecessors,  in  a  manner  quite  differ- 
ent from  its  Uteral  terms,  the  plaintiff  was  not  suffered  to  enforce  it  according  to 
its  exact  tei-ms,  but  was  required,  in  a  suit  brought  to  compel  the  acceptance  of 
a  new  lease,  to  treat  it  as  though  it  had  actually  been  altered,  so  as  to  read  in 
accordance  with  the  long  practice — in  other  words,  performance  was  coupled  with 
a  modification  of  the  contract.  But  there  was  really  no  mistake  i-cre ;  only 
acquiescence.  Davis  v.  Hone,  2  Sch.  &  Lef.  341. 
350 


338  SPECIFIC  FKKFORMANCE   OF  CONTRACTS. 

the  modified  or  varied  forni.(l)  In  the  cases  falling  within  the 
l)i'eseut  subdivision,  us  well  as  in  those  whicli  are  brought  to  obtain 
the  remedy  of  a  rescission  or  of  a  reformation,  the  mistake  of  the 
defendant,  and  the  modification  which  it  would  introduce  into  the 
written  contract,  must  be  clearly  established  by  cogent  evidence. 
Although,  as  has  already  been  stated,  neither  the  statute  of  frauds, 
nor  any  principle  of  judical  proof,  renders  a  written  agreement  abso- 
lutely inviolable,  yet  a  i)arty  is  not  permitted  to  avoid  or  escape  from 
such  a  contract,  formally  signed  and  delivered  by  him,  upon  any 
parol  evidence  of  his  own  mistake,  unless  such  evidence  is  suffi- 
cient to  create  an  undoubted  conviction  in  the  judicial  mind  of  the 
court.  (2) 

Ho^v  far  parol  evidence  is  admissible  to  vary  a  -written  con- 
tract. 
Sec.  254.  In  the  foregoing  discussion  of  the  remedies  granted  to  the 
■defendant  or  to  the  plaintiff,  whore  the  defendant  proves  a  mistake  in 
the  contract  alleged  by  the  plaintitf,  and  establishes  by  means  of  his 
own  evidence  a  different  but  correct  version  of  their  agreement,  the 
cases  which  have  been  cited  and  the  rules  which  they  established, 
have  arisen  and  grown  out  of  the  principles  of  equity  procedure 
which  have  prevailed  in  the  English  court  of  chancery,  and  in  the 
American  tribunals  exercising  an  equitable  jurisdiction.  It  is  plain 
that  the  remedial  rights  of  the  parties  and  the  remedies  which  shall 
be  awarded  to  them,  must,  to  a  very  gi-eat  extent,  depend  upon  these 
rules  of  procedure,  and  especially  upon  those  which  regulate  the  mode 
of  pleading  and  the  gi-anting  of  affirmative  relief  to  the  defendant 
upon  his  own  allegations.  It  is  also  equally  plain  that  a  very  great 
change  has  been  wrought  in  this  respect  by  the  reformed  system  of 
procedure,  which  now  prevails  in  such  a  large  number  of  the  states  and 
territories  of  the  United  States.  In  order  to  reconcile  the  cases  which 
treat  of  the  general  subject  now  under  discussion,  and  to  harmonize 
and  reduce  into  a  consistent  system  the  apparently  conflicting  rules 
which  they  lay  down,  it  is  in  the  highest  degree  necessary  to  ascer- 
tain and  to  keep  constantly  in  mind  the  very  different  relations  which 
may  exist  between  the  litigant  parties  in  a  suit  for  specific  i)erform- 
ance,  where  the  defendant  proves  an  error  in  the  contract  as  alleged 
by  the  plaintiff,  and  establishes  by  his  own  evidence  another  and 
coiTect  version  of  the  agreement ;  since  the  decision  made  by  the 
court  and  the  doctrine  which  it  announces  mayor  must  di^pend  iqion 
the  nature  of  these  relations.     In  the  first  place,  the  defendant  may 

(1)  For  an  example,  althoug-h  the  mistake  was  then  the  plaintiff's,  see  Harris 
O.  Pepperell,  L.  R.  5  Va\.  1  ;  also  Robinson  v.  Page,  3  Russ.  114. 

(2)  See  Wood  v   Scarth,  2  K.  &  .J.  83. 

351 


THK    VO-^TliACT  MUST  BE   HiEK    tlioM  MISTAKE.  339 

show  the  mistake  or  error  in  the  contract  set  up  by  the  plaintiff,  and 
may  incidentally  prove  the  correct  version,  purely  as  a  matter  of 
defense,  simply  for  the  purpose  of  defeating  the  plaintiff's  recovery, 
not  asking  or  being  willing  to  accept  a  reformation,  or  the  enforce- 
ment of  the  agreement  as  he  has  proved  it  to  be,  or  any  other  affirma- 
tive relief;  while  the  plaintiff'  combats  the  defendant's  version,  and 
insists  upon  his  own  or  none.  In  the  second  place,  the  plaintiff,  after 
the  defendant  has  established  his  own  version  of  the  agreement  to  be 
the  coiTect  one,  may  be  willing  to  accept  it,  and  may  demand  a  decree 
compelling  its  specific  enforcement,  although  it  differs  materially 
from  that  set  out  in  his  own  pleading,  while  the  defendant  opposes 
the  granting  of  such  relief  to  the  plaintiff,  is  unwilling  that  any  form 
of  the  contract  should  be  enforced  in  the  pending  suit,  and  insists 
that  the  action  should  be  wholly  dismissed.  In  the  third  place,  after 
the  plaintiff  has  accepted  the  version  of  the  agreement  proved 
by  the  defendant,  as  under  the  circumstances  last  mentioned,  the 
defendant  may  submit  to  the  relief  being  granted,  and  a  decree 
enforcing  the  defendant's  version  would  then  be  made  without  opposi- 
tion— a  decree  really  by  consent.  Again,  in  some  special  cases,  after 
a  written  contract  has  been  proved  by  the  plaintiff,  and  a  subsequent 
parol  variation  of  it  is  shown  by  the  defendant,  the  defendant  him- 
self is  suffered  or  even  required  to  elect  which  form  of  the  agreement 
shall  be  enforced.  Finally,  the  defendant  may  allege  and  prove  an 
error  in  the  contract  as  set  out  by  the  plaintiff,  establish  his  own 
version  to  be  correct,  and  demand  the  affirmative  relief  that  the 
written  instrument  upon  whicl#  the  plaintiff  has  sued,  should  be 
reformed,- so  as  to  correspond  with  the  actual  agreement  which  he 
himself  has  proven,  and  that  the  contract  thus  corrected  should  be 
specifically  enforced,  while  the  plaintiff,  on  his  part,  resists  the  grant- 
ing of  any  such  relief  to  the  defendant,  and  insists  that  his  own 
version  of  the  contract  should  be  enforced  or  his  suit  dismissed.  How 
far  a  relief  shall  be  granted  to  the  plaintiff  based  upon  facts  other 
than  those  which  he  has  averred,  and  how  far  affirmative  relief  shall 
be  granted  to  the  defendant,  must  largely  depend  upon  the  rules  of 
procedure.  I  shall  add  a  brief  recapitulation  of  the  doctrines  which 
have  been  discussed  in  the  foregoing  paragraphs  of  this  ^Second  *'Sub- 
division,  which  are  based  upon  the  general  principles  of  the  chancery 
procedure. 

Sec.  255.  As  has  already  been  shown,  upon  the  defendant's  proof 
of  an  eiTor  or  a  parol  variation  in  the  contract  alleged  by  the  plaintiff, 
the  plaintiff  is  not  necessarily  dismissed  without  any  relief ;  he  may 
352 


340  SPECIFIC   FJiUFUh'MAyCK    OF   CO.\TRACTS. 

often,  and  perhaps  generally,  elect  whether  to  take  a  dismissal  of  his 
suit,  or  decree  for  a  specific  performance  of  the  contract  in  its  modi- 
lied  form,  as  proved  by  tlie  defendant. (1)  A  decree  reforming  tho 
contract  in  accordance  with  the  defendant's  proof,  and  enforcing  it  as 
thus  corrected,  may  also  be  granted  on  the  defendant's  demand.(2) 
Whether  in  the  former  of  these  cases  the  plaintirt  "s  suit  shall  be  dis- 
missed, or  he  shall  be  sut!"ercd  to  elect,  must  depend,  to  a  large 
extent,  upon  the  nature  of  his  allegations,  how  far  they  ditt'cr  from 
the  proofs  given  by  the  defendant,  and  also  upon  the  freedom  with 
which  amendments  are  allowed.  The  plaintiff  cannot  allege  one  con- 
tract in  his  pleading,  and  have  judgment  upon  an  entirely  dilfcrent 
one  as  made  out  either  by  his  own  evidence  or  by  that  of  the  defend- 
ant.(3)  If  the  plaintiff  sets  out  one  contract  in  his  pleading,  and  the 
defendant  proves  that  the  plaintiff's  allegations  are  untrue  in  any 
material  element,  the  right  to  a  recovery  is  certainly  defeated,  unless 
an  amendment  is  permitted,  and  the  allowance  of  amendments  is 
regulated  by  rules  of  procedure  which  have  no  special  application  to 
suits  for  a  specific  performance. (4) 

Sec.  256.  The  following  propositions  may  be  given  as  the  conclu- 
sions derived  from  the  decided  cases :  1.  When  the  contract  set 
up  in  the  complaint  is  denied  by  the  answer,  and  is  not  established 
by  the  evidence,  as  it  is  alleged,  this  is  a  complete  failure  of  proof, 
and  the  plaintiff's  suit  will  be  dismissed.  2.  When  the  defendant 
admits  a  contract  substantially  as  averred  by  the  plaintiff,  or  the 
same  as  far  as  it  goes,  but  sets  up  a  parol  modification  or  addition 
thereto — whether  such  defense  shall  be  admitted,  and  if  so,  upon 
what  terms  or  conditions — largely  depends  upon  the  circumstances 
of  each  case.  The  plaintiff's  suit  may  be  dismissed,  or  the  defend- 
ant may  have  a  decree  modifying  the  agreement  and  enforcing  it 
as  thus  altered.     3.  When  the  plaintiff  fails  to  make  out  the  contract 

(1)  Martin  v.  Pycroft,  2  DeG.  M.  &  G.  785  ;  Bradford  v.  Union  Bank,  13  How. 
(U.  S.)  57,  69;  Ryno  v.  Darby,  5  C.  E.  Greene,  231  ;  London,  etc.,  R'y  Co.  v. 
Winter,  1  Cr.  &  Ph.  57  j  Jeflery  v.  Stephens,  6  Jar.  (N.  S.)  947 ;  Doe  v.  Doe,  37 
N.  II.  2t58  ;  Buck  v.  Dowley,  16  Gray,  55.");  [Keiiu  v.  Liudley  (N.  ,J.  Im^.;,  3U  Atl. 
Rep.  1063  (Jan.  10,  1895).] 

(2)  Stapylton  v.  Scott,  13  Ves.  425 ;  Gwynn  v.  Lethbi-idge,  14  Vos.  585  ;  Brad- 
ford V.  Union  Bank,  supra. 

(3)  Allen  v.  Bui-ke.  2  ild.  Ch.  534 ;  Sims  v.  McEwen,  27  Ala.  184. 

(4)  Harris  ii.  Knickerbacker,  1  Paige,  209  ;  5  "Wend.  f>:{8  ;  Phillips  /«.  Thompson, 

1  Johns.  Ch.  131,  146  ;  Forsyth  v.  Clark,  3  Wend.  637  ;  BcUow.s  v.  Stone,  14  N.  11. 
175  ;  Parrish  v.  Koons,  1  Parsons  Eq.  Cas.  79  ;  Craig-e  v.  Craige,  6  Ii-ed.  l-ici.  191  ; 
Sims  V.  McEwen,  27  Ala.  184  ;  Hoxie  V.  Carr,  1  Sumner,   173  ;  Lindsay  v.  Lynch. 

2  Sch.  &  Lef.  1. 

353 


THE    CONTRACT  Ml 'ST  BK   FREE   FROM   MISTAKE.  341 

as  alleged  by  liiiiiself — and  which  must,  therefore,  so  far  as  the 
case  shows,  have  been  incorrectly  alleged — the  coui't  does  not  will- 
ingly permit  him,  against  the  defendant' s  objection,  to  avail  himself 
of  the  different  agreement — and  so  far  as  the  case  shows  the  correct 
one — which  the  defendant  has  averred  in  his  answer  and  estab- 
lished by  his  evidence. (1)  4.  It  has  been  shown  that  where  a 
plaintiff  has  knowingly  made  a  misrepresentation  affecting  some  part 
of  the  agreement,  he  cannot  waive  such  portion  and  enforce  the  resi- 
due. But  a  wrong  statement  made  by  him  in  good  faith,  and  not 
interfering  with  the  substantial  terms  of  the  contract,  will  not  prevent 
him,  if  the  case  is  otherwise  a  proper  one  for  granting  the  relief,  from, 
availing  himself  of  the  agreement  as  alleged  and  proved  by  the 
defendant,  and  obtaining  a  decree  for  its  enforcement.(2) 

Sec.  257.  In  respect  to  the  mode  of  pleading  the  cause  of  action, 
when  there  has  been  a  parol  variation,  the  plaintiff  should,  for  his  own 
advantage  and,  perhaps,  security,  aver  the  facts  as  they  actually 
exist,  alleging  the  written  agreement,  and  adding  any  parol  promise, 
stipulation,  terms,  or  representation,  by  which  it  has  been  varied  or 
modified,  and  then  leave  it  to  the  defendant  to  elect  whether  he  will 
accept  the  agreement,  as  embodied  in  the  writing,  or  insist  upon  the 
parol  modification. (3)  But  if  he  does  not  adopt  this  method  of  stating 
the  case,  he  will  not,  as  we  have  seen,  necessarily  fail  of  obtaining 
any  relief.  Although  he  alleges  the  written  contract  alone,  and  the 
defendant  establishes  another  version  differing  considerably  from  that 
set  out  in  the  plaintiff's  pleading,  the  court  may  decree  in  the  plain- 
tiff's favor  by  enforcing  the  agreement  proved  by  the  defendant ;  this 
form  of  relief  is,  however,  a  matter  of  pure  discretion,  and  not  of 
right.(4)     Finally,  the  court  may,  in  its  discretion,  decree  in  the 

(1)  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1 ;  Clowes  v.  Higginson,  1  V.  &  B.  524  ; 
Pilling  V.  Armitage,  12  Ves.  78. 

(2)  Ramsbottom  v.  Gosdon,  1  V.  &  B.  165;  London,  etc.,  R'y  Co.  v.  Winter,  1 
Cr.  &  Ph.  57  ;  Martin  v.  Pycroft,  2  DeG.  M.  &  G.  788. 

(3)  Martin  v.  Pycroft,  2  DeG.  M.  &  G.  788  ;  Ives  v.  Hazard,  4  R.  I.  14. 

(4)  Ramsbottom  v.  Gosdon,  1  V.  &  B.  165 ;  London,  etc.,  R'y  Co.  v.  Winter,  1 
Cr.  &  Ph.  57  ;  Lord  Wm.  Gordon  v.  Marquis  of  Hertford,  2  Madd.  122  ;  Gai  rard 
V.  GrinUng,  2  Sw.  244 ;  Flood  v.  Finlay,  2  Ball  &  B.  9  ;  Clark  v.  Grant,  14  Ves. 
519;  Bradford  v.  Union  Bank,  13  How.  (U.  S.)  57  ;  Wallace  v.  Brown,  2  Stockt. 
Ch.  308  ;  Ryno  v.  Darby,  5  C.  E.  Green,  231  ;  McComas  v.  Easley,  21  Gratt.  31. 
In  the  last  t«vvo  cases  the  plaintiff  was  permitted  to  have  a  decree  for  the  per- 
formance of  a  contract,  as  alleged  and  proved  by  the  defendant,  without  being 
required  to  amend  his  pleading  ;  but  this  relief  was  expressly  said  to  be  a  matter 
of  discretion  depending  upon  the  circumstances  of  the  case.  Doe  v.  Doe,  37  N. 
H.  268  ;  Buck  v.  Dowley,  16  Gray,  555. 

354 


342  SPECIFIC   PKHFORMA^Ch:    OF   CoyTHACTS. 

■defendant's  favor  a  specific  performance  of  the  contract,  as  alleged  in 
his  answer  and  proved  by  his  evidence,  without  [)utting  him  to  the 
delay  aiul  trouble  ol'  ;i  cn).ss-suit.(l) 

AfSmative  relief  to  defendant  under  a  counter-claim. 

Sec.  258.  The  foregoing  doctrines,  so  far  as  they  relate  to  the 
granting  of  the  affirmative  relief  of  reformation  and  specific  enforce- 
ment of  the  contract,  as  reformed,  to  the  defendant,  have  been 
greatly  modified  by  the  rules  of  the  reformed  procedure,  and  this 
modification  must  be  recognized  in  the  states  where  that  system 
prevails.  The  reformed  procedure,  as  one  of  its  distinctive  features, 
permits  a  "  counter-claim "  to  be  set  up  by  the  defendant,  by 
means  of  which  he  becomes  a  virtual  plaintiff",  and  is  entitled,  as  a 
matter  of  right,  to  affirmative  relief.  The  counter-claim  is  a  cause 
of  action  in  favor  of  the  defendant  connected  with  that  alleged 
by  the  plaintiff,  and  may  be  either  legal  or  equitable.  The  claim 
to  reform  or  modify  the  agreement  set  up  by  the  plaintiff,  and 
to  enforce  it,  as  thus  varied,  falls  within  every  definition  of  the 
counter-claim.  In  most  of  the  states  where  the  system  has  been 
adopted,  the  counter-claim  is  set  up  in  the  defendant's  answer, 
either  alone  or  in  connection  with  any  matter  purely  defensive  ;  but, 
in  a  few  of  them,  the  answer  must  be  put  into  the  form  of  a  cross-com- 
plaint or  petition.  The  result  of  this  legislation  cannot  be  doubted. 
If  the  defendant  in  a  suit  for  specific  performance,  alleges  by  way  of 
counter-claim,  a  parol  variation  or  modification  of  the  contract  as  set 
out  by  the  plaintiff,  and  demands  a  reformation  and  specific  enforce- 
ment as  reformed,  and  sufficiently  establishes  his  averments  by  his 
evidence,  the  granting  to  him  the  affirmative  relief  is  no  longer  a 
matter  of  discretion  ;  it  has  become  a  matter  of  right  inhering  in  the 
defendant.  The  doctrines  of  the  cases  which  have  been  decided  upon 
the  equity  practice  must,  therefore,  be  modified  in  this  respect 
wherever  the  reformed  procedure  prevails.  The  freedom  of  amend- 
ment allowed  by  the  new^  system  will,  also,  probably  work  some 
changes  in  the  matter  of  granting  an  election  to  the  plaintiff"  under 
the  circumstances  heretofore  described. 

1.  English  rule,  ^vhere  mistake  is  alleged  by  the  plaintiff  as 
a  ground  for  reforming  his  agreement,  and  enforcing  its 
specific  performance  -when  thus  corrected. 

Sec.  259.  Third.  Although,  as  has  been  shovn  in  the  foregoing  sub- 
divisions, parol  evidence  may  be  introduced  by  the  defendant,  in  order 
to  defeat  a  specific  performance  of  a  written  contract,  by  showing  that 

(1)  Spurrier  v.  Fitzyerald,  G  Ves.  .'548  ;  Fife  v.  Clayton,  13  Ves.  'AG ;  Gwynn  v. 
Lithbridg-e,  14  Ves.  585  ;  Bradford  v.  Union  Bank,  .supra. 

355 


THE    CONTRACT  MUST  BE  FREE    FROM  MISTAKE.  343 

through  mistake  or  fraud,  it  does  not  ex[)reps  the  real  agreement  made 
by  the  parties,  or  by  shitwing  that  the  agreement  was  induced  by  fraud, 
mistake,  or  misrepresentation,  yet,  on  the  other  hand,  the  doctrine  is 
fully  settled  in  England  that  this  cannot  be  done  by  the  plaintiff. 
The  plaintiff  cannot,  in  this  manner,  prove  a  mistake  or  a  fraud,  and 
by  means  of  parol  evidence  establish  the  modification  in  the  terms  of  the 
contract,  which  would  result  from  such  error  or  fraud,  for  the  purpose 
of  obtaining,  in  the  same  suit,  a  specific  performance  of  the  written 
agreement  so  varied,(l)  unless  there  has  been  a  part  performance  of 
the  parol  variation,  in  which  case  the  written  contract,  with  the  modi- 
fication, will  be  specifically  executed.(2) 

Sec.  260.  This  doctrine  is  fairly  open  to  the  following  observations : 
First.  When  the  alleged  mistake,  and  a  fortiori,  when  the  fraud  is 
committed  by  the  plaintiff,  it  would  be  manifestly  unjust  that  he,  the 
actor  in  the  suit  brought  to  enforce  the  wrongful  or  imperfect  agree- 
ment, should  be  allowed  to  correct  his  own  error,  or  obviate  the  effects 
of  his  own  deceit,  and  obtain  a  specific  performance  of  the  contract 
which  had  been  thus  amended.  In  its  application  to  this  case,  the 
doctrine  rests  upon  the  surest  foundations  of  equity,  and  prevails  in 
the  United  States  as  well  as  in  England.  But,  secondly.  When  the 
error  is  common,  or  the  fraud  is  committed  by  the  adverse  party,  so 
that  the  contract  is  one  which  may  be  reformed,  there  is  certainly  no 
greater  inherent  injustice  in  permitting  such  correction  to  be  made  on 
the  demand  of  the  plaintiff,  and  by  means  of  parol  evidence  intro- 
duced on  his  part,  than  in  allowing  it  to  be  made  on  the  allegations, 
parol  proofs,  and  contention  of  the  defendant.     And  when  we  con- 

(1)  Woollam  V.  Hearn,  7  Ves.  211 ;  2  White  &  Tudor's  Lead.  Cas.  in  Eq.  484  (920» ' 
4th  Am.  ed.)  ;  Rich  v.  Jackson.  4  Bro.  C.  C.  514;  6  Ves.  334,  n.  ;  Hig-g-insnn  v. 
Clowes,  15  Ves.  516,  523 ;  Winch  v.  Winchester,  1  V.  &  B.  375,  378 ;  Clinan  v. 
Cooke,  1  Sch.  &  Lef.  22,  38 ;  Manser  v.  Back,  6  Hare,  447 ;  Equire  v.  Campbell,  1 
My.  &  Cr.  480 ;  London  &  Birmingham  Ry.  Co.  v.  Winter,  Cr.  &  Ph.  57,  61 ;  Em- 
mett  V.  Dewhurst,  3  McN.  &  G.  587 ;  Atty.-Gen.  v.  Sitwell,  1  Y.  &  C.  Ex.  559  ; 
Davies  v.  Fitton,  2  Dr.  &  W.  225,  233.  There  are  eai-ly  dicta  sug-gesting-  a  con- 
trary view  of  Lord  Hardwickb  in  Walker  v.  Walker,  2  Atk.  98,  100  ;  6  Ves.  335, 
n. ;  and  Joynes  v.  Statham,  3  Atk.  388  ;  of  Lord  Thurlow,  in  Pember  v.  Mathers, 
1  Bro.  C.  C.  52 ;  and  of  Lord  Eldon,  in  Marquis  Townshend  v.  Stangroom,  6  Ves. 
328,  339  ;  and  see,  also,  Harrison  v.  Gardner,  2  Mad.  198  ;  Clark  v.  Grant,  14  Ves. 
524,  per  Sir  Wm.  Grant  ;  Cliffoi-d  v.  Turrell,  1  Y.  &  C.  C.  C.  138,  per  Knight 
Brdcb,  V.  C.  In  Martin  v.  Pycroft,  2  DeG.  M.  &  G.  785,  a  limitation  seems  to 
have  been  established  to  the  general  doctrine  as  stated  in  the  text,  viz.  :  that 
plaintiff  may  prove  a  parol  modification,  which,  if  it  had  been  alleged  by  the 
defendant,  and  submitted  to  by  the  plaintiff,  would  have  been  made  a  \)a,Yi  of  the 
written  agreement,  and  enforced  with  it  by  the  court ;  and  see  Robinson  il  Page, 
3  Russ.  114. 

(2)  Legal  v.  Miller,  2  Ves.  299  ;  Pitcaim  v.  Ogbourne,  2  Ves.  375  ;  Anon.,  5  Vin. 
Abr.  522,  pi.  38  [OUsy  v.  Fisher,  34  Ch.  D.  367J. 

356 


344  SPECIFIC  PERFORiTANCE   OF  CO.\TliACTS. 

8iaer  that  the  plaintiff  is  always  able,  in  the  cases  supposed,  to  obtain 
a  reforuiatiou  ui'  the  written  contract  by  the  use  of  tlie  same  parol  evi- 
dence in  a  separate  suit  instituted  for  that  very  purpose,  and  can,  in 
a  second  suit,  compel  a  specific  performance  of  the  agreement  thus 
corrected,  the  rule  forbidding  the  attainment  of  this  linal  result  in  one 
proceeding,  seems  to  be  an  instance  of  thq  supreme  devotion  to  mere 
form  which  was  such  a  marked  characteristic  of  even  the  ablest  Eng- 
lish courts  during  their  entire  history  until  within  a  very  recent  period. 
Whenever  the  remedy  of  reformation  is  simply  a  preliminary  step  to 
that  of  specific  performance,  there  is  no  reason,  in  the  nature  of  things, 
why  they  should  not  both  be  granted  in  one  judicial  proceeding. 

2.  Americr-n  rale  permifdng  such  information  and  enforcement. 

Sec.  2(31.  The  American  courts  have  pursued,  in  this  respect,  the 
more  simple,  consistent,  and  enlightened  course  of  adjudication.  The 
doctrine  is  well  settled  in  the  United  States,  that  where  the  mistake 
or  fraud  in  a  wTitten  contract  is  such  as  admits  the  equitable  remedy 
of  reformation,  parol  evidence  may  be  resorted  to  by  the  plaintiff  seek- 
ing to  enforce,  as  well  as  by  the  defendant  seeking  to  defeat  a  specific 
performance.  The  plaintiff  may  allege  and  by  parol  evidence  prove 
the  mistake  or  fraud,  and  the  modification  in  the  written  contract 
made  necessary  thereby,  and  may  obtain  a  decree  for  the  specific 
execution  of  the  agreement  thus  corrected.(I)     The  defect  in  the 

(1)  Chancellor  Kent,  in  Keisselbrack  v.  Livingstone,  4  Johns.  Ch.  148,  expressed 
the  following  opinion  of  the  doctrine  :  "  Why  should  not  the  party  aggrieved  by  a 
mistake  in  the  agreement  have  relief  as  well  when  he  is  plaintiff  aa  when  he  is 
defendant?  It  cannot  make  any  difference  in  the  reasonableness  and  justice  of 
the  remedy,  whether  the  mistake  were  to  the  prejudice  of  the  one  party  or  the 
other.  If  the  court  be  a  competent  jurisdiction  to  correct  such  mistakes — and 
that  is  a  point  understood  and  settled — the  agreement  when  corrected  and  made 
to  speak  the  real  sense  of  the  parties  ought  to  be  enforced,  as  well  as  any  other 
agreement  perfect  in  the  first  instance.  It  ought  to  have  the  same  efficacy  and 
be  entitled  to  the  same  protection,  when  made  accurate  under  a  decree  of  the 
court,  as  when  made  accurate  by  the  act  of  the  parties."  See  Story  Eq.  Jur, 
t^  166,  n.  See,  also,  in  support  of  the  American  doctrine,  the  following  cases : 
Bellows  V.  Stone,  14  N.  H.  175  ;  Smith  v  Greeley,  14  N.  H.  378  ;  Craig  v.  Kit- 
tredge,  3  Foster,  231 ;  Tilton  v.  Tilton,  9  N.  H.  385 ;  Beardsley  v.  Knight,  10  Vt. 
185 ;  Glass  d.  Hulbert,  102  Mass.  24,  41  ;  Molcalf  v.  Putnam,  9  Allen.  97 ;  Coob 
•W.  Preston,  2  Root,  78 ;  Sandford  v.  Washburn,  2  Root,  499  ;  Elmore  v.  Austin,  2 
Root,  415  ;  Chamberlain  v.  Thompson,  10  Conn.  243 ;  Wooden  v.  Haviland,  18 
Conn.  101  ;  Lyman  v.  Unit  Ins.  Co.,  17  Johns.  377  ;  G(>oding  v.  McAllister,  9 
How.  Pr.  123  ;  Hyde  v.  Tannen,  1  Barb.  75 ;  Governeur  ii.  Titus,  1  Kdw.  Ch. 
177 ;  6  Paige,  347  ;  Gillespie  v.  Moon,  2  Johns.  Ch.  585  ;  Coles  v.  Brown,  10  Paige, 
535  ;  Rosevelt  v.  Fulton,  2  Cow.  129  ;  Smith  v.  Allen,  Saxton,  43  ;  Hendrickson  «. 
Ivins,  Saxton,  562 ;  Christ  v.  Diffenbach,  1  Serg.  &  R.  464  ;  Moliere  v.  Penn.  Ins. 
Co.,  5  Rawle,  347;  Gower  v.  Sterner,  2  Whai-t.  75;  Bowman  v.  Bittenbender,  4 
Watts,  290  ;  Clark  v.  Partridge.  2  Barr.  13,  4  Barr.  166 ;  Sustpiefianna  Ins.  Co.  V. 
PeiTine.  7  W.  &  S.  348  ;  Wesley  v.  Thomas,  6  Har.  &  Johns.  24  ;  Coutt  v.  Craig,  2 

357 


THE   CONTRACT  MUST  BE  FREE  FROM  MISTAKE.  345 

contract  must,  however,  be  proved  beyond  any  reasonable  doubt,  by 
evidence  of  tlie  clearest  and  most  satisfactory  nature. (1)  The  burden 
of  ])roof  is  on  the  plaintiff;  and  this  burden  requires  him  to  show,  not 
only  that  the  parties  had  a  different  intention  from  that  expressed  in 
the  writing-,  at  the  commencement  of  their  negotiation  or  when  they 
first  agreed  upon  the  contract,  but  also  that  this  intention  had 
not  been  changed  at  the  time  of,  or  before  the  actual  signing  and 
delivery  of  the  written  instrument;  —  otherwise  the  inference  would 
necessarily  arise  that  the  parties  had  abandoned  this  their  original 
intention,  and  had  adopted  in  place  of  it  the  one  expressed  by  the 
writiug.(2)  It  is  not  sufficient  merely  to  prove  a  mistake,  which 
might  be  the  ground  for  a  rescission.  In  order  that  the  plaintiff 
may  have  the  remedy  of  reformation,  he  must  show  something  to 
amend  by ;  an  alteration  of  the  writing  cannot  be  made  upon  a 
conjecture  as  to  the  true  reading,  even  though  the  court  is  satis- 
fied that  the  existing  instrument  does  not  express  the  real  intention  of 
the  parties.  (3) 

Hen.  &  Munf.  618 ;  McCall  v.  Harrison,  1  Brockenborough,  126  ;  Newsom  v. 
Bufferlow,  1  Dev.  Eq.  383 ;  Brady  v.  Parker,  4  Ired.  Eq.  43U ;  Rogers  v.  Atkin- 
son, 1  Kelly,  12;  Clopton -y.  Martin,  II  Ala.  187:  Harris -u.  Columbiana  Ins.  Co., 
18  Ohio,  116  ;  Webster  v.  Harris,  16  Ohio,  490  ;  Shelby  v.  Smith,  2  A.  K.  Marsh. 
504 ;  Worley  v.  Tuggle,  4  Bush,  168,  173  ;  Shipp  v.  Swann,  2  Bibb,  82  ;  Bailey  v. 
Bailey,  8  Humph.  230 ;  Willis  v.  Henderson,  4  Scam.  13 ;  Leitensdorfer  v. 
Deiphy,  15  Mo.  160;  [Kleim  v.  Lindley  (N.  J.  Eq  )  30  Atl  Rep.  1063  (Jan.  10, 
1895).  See  review  of  English  and  American  authorities  in  Creigh  v.  Boggs,  19' 
W.  Va.  240.  In  this  case  there  was  a  mutual  mistake  of  the  parties  as  to  bound- 
aries, and  an  oral  agreement  to  change  the  boundaries  so  as  to  include  a  mill- 
site.  On  suit  of  vendee  to  enforce  the  contract  as  modified  the  defendant  admitted 
the  mistake  and  correction  but  set  up  the  statute  of  frauds.  The  court,  how- 
ever, enforced  the  contract  as  modified.  See,  also,  Railroad  Co  v  Steinfeld, 
42  Ohio  St.  449.]  In  Murphy  v.  Rooney,  45  Cal.  78,  the  defendant  in  an  a;-tion 
to  recover  possession  of  land  set  up,  by  way  of  counter-claim,  a  written  contract 
for  the  sale  of  the  land,  and  sought  to  have  a  mistake  in  it  corrected  by  parol 
evidence,  and  then  to  have  it  specifically  performed  as  corrected,  and  this  relief 
was  granted  him.  Such  a  defendant  is,  of  course,  in  the  position  of  a  plaintiff. 
Murray  v.  Dake,  46  Cal.  644.  In  Whitteker  v.  Van  Schoiack,  5  Oreg.  113,  it  was 
said  that  a  court  of  equity  will  not  generally  comjiel  the  specific  performance  of 
a  written  contract  with  variations  or  additions  introduced  by  parol  evidence,  for 
such  a  coui'se  would  be  an  attempt  to  enforce  a  contract  partly  written  and  partly 
verbal,  while  the  court  of  equity  regards  the  writing  as  the  highest  evidence  of 
the  parties' intent  without  reference  to  the  requirements  of  the  statute  of  frauds. 
See,  however,  Quinn  v.  Roath,  37  Conn.  16. 

(1)  Nevius  V.  Dunlap,  33  N.  Y.  676;  Lyman  v.  U.  Ins.  Co.,  2  Johns.  Ch. 
630 ;  17  Johns.  373 ;  Harris  v.  Reece,  5  Gil.  212 ;  Beard  v.  Linthicum.  1  Md.  Ch. 
345  ;  Hunter  v.  Bilyeu,  30  111.  246 ;  Selby  v.  Geines,  12  111.  69  ;  Bailey  v. 
Bailey,  8  Humph.  230  ;  Harrison  v.  Howard,  1  Ired.  Eq.  407  ;  Brady  v.  Parker^ 
4  Ired.  Eq.  430. 

(2)  Stine  v.  Sherk,  1  W.  &  S.  195. 

(3)  Lyman  v.  U.  Ins.  Co.,  2  Johns.  Ch.  630;  Keisselbrack  v.  Livingston,  4 
Johns.  Ch.  144 ;  Matthews  v.  Terwilliger,  3  Bai'b.  50 ;  Rider  ?;.  Powel,  28  N.  Y. 
310 ;  Hall  v.  Clagett,  2  Md.  Ch.  1.^3  ;  Philpot  v.  Elliott.  4  Md.  Ch.  273 ;  Hunt  «. 
Rousmanier,  1  Pet.  1  ;  Durant  •?'.  Baeot,  2  McCarter,  411  ;  Snyder  v.  May,  7  Har- 
ris, 239 ;   Tesson  v.  Atlantic  Ins.  Co.,  40  Mo.  33  ;  Beebe  v.  Young,  14  Mich.  136; 

358 


34G  SPECIFIC  PKUFORMAXCE    OF  COXTRACTS. 

Sec.  262.  In  those  states  which  have  adopted  the  reformed  Ameri- 
can system  of  proceedure  there  can  be  no  doubt  or  question  in  re^'^ard 
to  this  doctrine.  In  one  civil  action,  whether  denominated  "  etiuita- 
ble"  or  legal,  the  plaintiff  may  not  only  unite  and  obtain  both  the 
equitable  remedy  of  a  n^formation  and  the  e(iuital)le  remcily  of  a  speci- 
fic performance,  but  also  the  equitable  remedy  of  rcfdrmatidn  an<l  the 
legal  remedy  of  a  pecuniary  judgment  for  debt  or  daiuiiges  f(jr  tluj 
breach  of  the  contract  as  coiTected,  or  the  loy'al  remedy  of  a  recovery 
of  specific  lands  or  chattels. (1)    The  defendant  also  becoming  the  real 

Andrews  v.  Essex,  etc.,  Ins.  Co.,  3  Mason,  6  ;  Fowler  r.  Fowler,  4  DeG.  &  J.  205. 
In  this  last  case  the  rule  was  thus  stated:  "It  is  clear  that  a  person  who  seeks 
to  rectify  a  deed,  on  the  ground  of  mistake,  must  be  required  to  establish  in  the 
clearest  and  most  satisfactory  manner  that  the  alleged  intention  to  which  he 
desires  it  to  be  made  confomiable,  continued  concurrently  in  the  minds  of  all  par- 
ties do\\'n  to  the  time  of  its  execution,  and  also  must  be  able  to  show  exactly  and 
precisely  the  form  to  which  the  deed  ought  to  be  brought."  In  some  cases  the 
requirement  that  it  must  be  shown  affirmatively  that  the  original  intent  continueii 
down  to  the  time  of  executing  the  instrument,  has  not  been  insisted  upon,  a.s  in 
the  psissage  just  quoted.  Thus  in  Tesson  v.  The  Atlantic  Mut.  Ins.  Co.,  40  Mo. 
33,  36,  the  rule  is  thus  laid  down:  "A  court  of  etjuity  has  jurisdi(;tion  to  reform 
a  policy  of  insurance  or  other  written  contract  upon  parol  evidence,  whei-e  the 
agreement  really  made  by  both  parties  has  not  been  correctly  incoi-porated  into 
the  instrument  through  accident  or  mistake  in  the  framing  of  it ;  but  both  the 
(original)  agreement  and  the  mistake  must  be  mado  out  by  the  clearest  evidence 
according  to  the  understanding  of  both  parties  as  to  what  the  contract  was 
intended  to  be,  and  upon  testimony  entirely  exact  and  satisfactory^  and  it  must 
appear  that  the  mistake  consisted  in  not  drawing  the  instrument  according  to 
the  agreement  that  was  made."  In  applying  the  docti-ine  it  has  been  held  that 
where  two  parties  verbally  enter  into  an  agreement,  and  agree  that  it  shall  be 
put  into  a  written  form,  and  one  of  them  draws  iqi  the  writing  so  that  it  deviates 
from  their  original  contract,  and  the  other,  not  knowing  of  the  change,  signs  the 
instrument  supposing  that  it  expresses  their  real  agreement,  the  one  who  was 
thus  misled  is  entitled  to  a  refoi-mation.  And  the  same  remedy  is  granted  where, 
under  like  preliminary  circumstances,  one  of  the  parties  knows  that  the  scrivener 
has  altered  the  contract  in  the  process  of  reducing  it  to  writing,  and  permits  the 
other  party  to  sign  it  in  ignoj-ance  of  the  change.  Ri<ler  v.  Powell,  28  N.  Y.  310 ; 
Matthews  v.  Terwilliger,  3  Barb.  50.  There  was,  of  course,  no  7nutual  mistake  in 
these  cases,  and  they  properly  fall  under  the  head  of  "  misrepresentation  "  or 
"concealment,"  or,  perhaps,  under  that  of  positive  "fraud." 

(1)  See  Pomeroy  on  Remedies,  §§  78-85.  Reforming  an  instrument  and  recover- 
ing i)ecimiary  judgment  on  it  as  reformed.  Bidwell?'.  Astor  Ins.  Co.,  16  N.  Y.  263 ; 
Cone  V.  Niagara  Ins.  Co..  60  N.  Y.  619  ;  3  T.  &  C.  33  ;  N.  Y.  Ice  Co.  v.  N.W.  Ins. 
Co.,  23  N.  Y.  357,  359  ;  Welles  v.  Yates,  44  N.  Y.  525  ;  Ca.swell  v.  West,  3  T.  &  C. 
383.  Reformation  and  other  sjiecial  relief,  such  as  recovery  of  land,  and  tlie 
like.  Laub  v.  Buckmiller,  17  N.  Y.  620  ;  Lattin  v.  McCarty,  41  N.  Y.  107  ;  Philliiia 
V.  Gorham,  17  N.  Y.  270.  See,  also,  on  the  general  stibject.  Gray  ?'.  Dougherty, 
25  Cal.  266  ;  Walker  7'.  Redgwi<-k,  8  Cal.  398  ;  Henderson  v.  Dickey,  50  Mo.  161. 
165;   Guernsey  1).  Am.  Ins.  Co.,  17  Minn.  104,  108;    Montgomery  t).   McEwen,  7 

359 


THE    CONTRACT  MUST  BE  hREE  FROM  MISTAKE.  347 

actor,  ami  setting  forth  an  affirmative  cause  of  action,  may,  by  means 
of  Lis  counter-claim,  coiu})rise  in  one  decree  against  the  plaintiff  the 
same  equitable,  or  equitable  and  legal  relief.  (1) 
Liiritations  upon  the  American  rule  adopted  by  certain  courts. 
yEC.  268.  Although  the  general  doctrine,  as  above  stated,  is 
accepted  throughout  the  United  States,  a  very  important  division 
exists  among  the  judicial  decisions  with  respect  to  its  application  to 
contracts  which  are  required,  by  the  statute  of  frauds,  to  be  in  writ- 
ing. This  division  turns  upon  the  nature  and  effects  of  the  mistake 
or  the  fraud,  and  the  kind  of  relief  demanded  by  the  plaintiff.  In 
contracts  required  by  the  statute  to  be  in  writing,  all  possible  errors, 
whether  resulting  from  mistake  or  fraud,  may  be  reduced  to  the  two 
following  classes :  1.  By  means  of  the  error  the  contract  may  apply  to 
or  include  within  its  terms  lands  or  other  subject-matter,  which  were 
not  intended  to  come  within  its  operation ;  in  which  case  the  parol 
evidence  will  show  that  such  land  should  be  omitted,  and  the  relief 
demanded  will  be  a  correction  which  shall  exclude  it,  and  shall  con- 
fine the  operation  of  the  contract  to  the  remaining  subject-matter.  2. 
By  means  of  the  error  the  contract  may  omit  or  fail  to  apply  to  land 
or  other  subject-matter  which  was  intended  by  the  parties  to  come 
within  its  operation ;  and  the  parol  evidence  would  then  show  that 
this  la.nd  should  be  included,  and  the  relief  will  be  a  modification 
which  shall  cause  the  contract  to  embrace  it,  and  shall  thus  extend  the 
operation  of  the  WTitten  instrument.  It  is  obvious  that  in  the  first  of 
these  cases  the  lelief  does  not  conflict  with  the  statute  of  frauds, 
because  it  does  not  make  or  enforce  a  parol  contract,  but  simply 
restricts  a  written  one  already  made.  In  the  second  case  the  relief 
seems  to  conflict,  in  a  direct  manner,  with  the  statute  of  frauds,  since 
it  virtually  consists  in  the  enforcement  of  a  parol  contract  concerning 
laiid.  The  latter  remedy  is  the  parol  extension  of  a  written  contract, 
so  that  it  shall  embrace  land  not  otherwise  within  its  scope  ;  the 
former  is  simply  the  withdrawal  of  land  from  the  scope  of  a  written 
contract  which  is  left  in  full  force  with  respect  to  its  remaining  sub- 
ject-matter ;  one  is  an  affirmative  process  of  making  or  at  least  enlarg- 

Minn.  351.  But  see,  as  inconsistent  with  this  g-eneral  doctrine  of  the  reformed 
procedure,  the  views  of  the  Wisconsin  court  in  Noonan  v.  Orton,  21  Wise.  283; 
Supervisors  v.  Decker,  30  Wise.  624,  626  ;  Horn  v.  Ludington,  32  Wise.  73  ;  Lawe 
V.  Hyde.  39  Wise.  345. 

(1)  See  Pnmeroy  on  Remedies,  §§  91-97,  and  cases  cited  ;  Hoppough  ?>.  Struble, 
60  N.  Y.  430  ;  Haire  v.  Baker,  5  N.  Y.  357  ;  Ci-ary  v.  Goodman.  12  N.  Y.  266,  268 ; 
Guedici  v.  Boots,  42  Cal.  452,  456  ;  Bartlett  v..  Judd,  21  N.  Y.  200,  203  ;  Ing-les  V. 
Patterson,  36  Wise.  373 ;  Cavalli  v.  Allen,  57  N.  Y.  508 ;  Talbei-t  v.  Singleton,  42 
Cal.  390 ;  Petty  v.  Malier,  15  B.  Mon.  604 ;  Onson  v.  Cown,  22  Wise.  329. 
360 


348  SPECIFIC   FEHFOIiMANCE    OF   COyTNACTS. 

ing-  a  written  contract ;  the  other  is  a  negative  process  of  limiting  such 
a  contract  already  made.  Tlie  division  of  opinion  mentioned  above 
relates  to  these  two  classes  of  errors.  According  to  one  theory,  parol 
evidence  can  only  be  admitted  in  the  first  case  where  the  relief  is 
purely  restrictive  ;  according  to  tlie  other,  it  may  be  admitted  and  the 
relief  granted  in  both  cases.  , 

Sec.  2(34.  This  hitter  form  of  the  doctrine,  in  all  its  breadth,  is  main- 
tained by  a  preponderance  of  judicial  authority  in  this  country  by 
courts  and  jurists  of  the  higliest  character.  It  holds  that  whether  the 
contract  is  executory  or  executed,  the  plaintitf  may  introduce  parol 
evidence  to  show  a  mistake  or  fraud  whereby  the  writtiMi  contract 
fails  to  express  the  actual  agreement,  and  to  prove  the  modifications 
necessary  to  be  made  therein,  wliether  such  variation  consists  in  limit- 
ing the  scope  of  the  writing,  or  in  enlarging  it  so  as  to  embrace  land 
which  had  been  omitted  through  the  mistake  or  fraud,  and  that  he 
may  then  obtain  a  specific  enforcement  of  the  contract  thus  varied ; 
and  such  relief  may  be  granted,  although  the  contract  is  one  which  is 
required  by  the  statute  to  be  in  writing.  Of  com^se,  in  actual  prac- 
tice the  decree  does  not  always  provide  for  a  preliminary  reformation 
of  the  w^ritten  instrument,  and  then  for  its  specific  performance,  but 
often  directs  the  performance  at  once  as  though  the  correction  had 
been  made.  In  some  cases,  however,  the  rights  of  the  plaintiff  can 
only  be  protected  by  an  actual  reformation. (1)  This  doctrine  is  illus- 
trated in  the  clearest  manner  by  the  treatment  of  executed  contracts 
or  conveyances  of  land.  It  is  settled,  by  the  overwhelming  preponder- 
ance of  American  authority,  that  a  deed  of  land  may  be  thus  corrected 
by  enlarging  its  scope,  extending  its  operation  to  other  subject-mat- 
ter, supplying  portions  of  land  which  have  been  omitted,  making  the 
estate  conveyed  more  comprehensive — as,  for  example,  changing  a 
life  estate  into  a  fee  and  the  like — and  that  the  deed  thus  corrected 
may  be  enforced  against  the  grantor. (2)     If  this  relief  can  be  con- 

(1)  Keisselbrack  v.  Livingston,  4  .Johns.  Ch.  144  ;  Phyfe  u  Wardell,  2  Edw.  Ch. 
47 ;  Hendrickson  ■?).  Ivins,  Saxton,  5G2  ;  Philpot  i\  Elliott,  4  Md.  Ch.  27.'} ;  Gower 
•?•.  Sterner,  2  Whart.  75  ;  "Workman  v.  Guthrip,  5  Casey,  495  ;  Tyson  v.  Passtnore, 
2  Barr,  122  ;  Tilton  v.  Tilton,  9  N.  H.  38.5  ;  Coles  v.  Brown,  10  Paig-e,  535  ;  Mur- 
phy V.  Rooney,  45  Cal.  ?■>  ;  Story  Eq.  Jur.,  §  1(51. 

(2)  Crai'r  ?'.  Kittredifp,  8  Fost.  231  ;  Smith  v.  Greeley,  1 1  N.  H.  378  ;  Blodj^ett  v. 
Hobart,  ]8  Vt.  414;  Wiswall  v.  Hall,  3  Paiire.  313;  De  Peyster  V.  lI:usi)rouc,k,  1 
Kern.  582  ;  Gouverneur  v.  Titus,  1  Edw.  Ch.  480  ;  6  Viu'^e,  347  ;  Chain  her  Lain  v. 
Thompson,  10  Conn.  243 ;  Tilton  v.  Tilton,  9  N.  H.  385  ;  Hendi-ickson  v.  Ivins, 
Saxton,  502  :  Flag'ler  ?>.  Pleiss,  3  Rawle,  345  ;  Tyson  v.  Passmore,  2  Bair,  122  ; 
Moale  V.  Buchanan.  11  Gill  &  Johns.  314;  Worley  v.  Tng-ple,  4  Bush,  1S2  ;  Pro- 
vost t).  Rebman,  21  Iowa,  419;  Wright   v.    McCormick,  22  Iowa,  .545;  Hunter  v. 

801 


THE    COSTRACT  MUHT  Bh:   FlihE    FIWM  MISTAKE.  349^ 

ferred  in  the  case  of  a  deed  which  has  actually  conveyed  the  title, 
then  it  may  certainly  be  granted  in  the  case  of  executory  contracts 
which  do  not  disturb  the  legal  title. 

Sec.  265.  In  some  of  the  states,  however,  the  courts  have  refused  to 
apply  the  doctrine  of  a  parol  variation  on  behalf  of  the  plaintiff  to 
executory  contracts  within  the  statute  of  frauds,  where  the  modifica- 
tion demanded  would  consist  in  an  enlargement  of  the  scope  of  the 
written  instrument,  so  that  it  should  include  a  subject-matter  not 
embraced  within  its  terms  as  it  stands,  or  should  increase  the  estate, 
or  otherwise  cause  it  to  operate  upon  interests  in  land  which  are  not 
within  the  written  provisions. (1)  The  reasons  upon  which  this 
restricted  theory  of  equitable  jurisdiction  is  based  are  very  briefly 
and  simply  the  following:  The  statute  of  frauds  peremptorily  requires 
that  every  contract  concerning  any  interest  in  land,  with  a  certain 
exception,  shall  be  in  writing ;  that  the  limitation  or  restriction  of  a 

Bilyeu,  30  111  228;  Murray  v  Dake,  46  Cal.  644  ,  [McDonald  i).  Yungbluth,  46 
Fed.  Rep  836]  As  a  general  proposition,  such  relief,  Ijased  ujion  parol  variation 
of  a  written  contract  whether  executed  or  executory,  can  only  T)e  given  upon  the 
occasion  of  mistake,  surprise  or  fraud  See  Blakeslee  t).  Blakeslee,  10  Harris:, 
237 ;  Lee  v.  Kirby,  104  Mass  420  The  rule  adopted  in  several  states,  M-hi<  k 
allows  parol  evidence  to  show  that  a  deed  absolute  on  its  face  is  really  a  mort- 
gage, even  when  there  was  no  fraud  or  mistake  in  the  transaction,  appears  to  be 
an  exception  to  this  general  principle. 

(1)  The  case  in  which  this  view  is  the  most  distinctly  and  ably  presented  is  Glass 
-y.  Hulbert,  102  Mass.  24.  One  of  two  adjoining  lots  belonging  to  the  defendant 
was  bought  in  i-eliance  upon  the  vendor's  false  and  fraudulent  representations 
that  it  included  a  certain  sixteen  acres,  whereas  it  was  the  other  lot  which  con- 
tained these  acres.  The  case  was,  therefore,  not  one  of  a  misunderstanding  by 
the  two  parties  in  respect  to  the  subject-matter  so  that  there  was  no  actual 
assent  to  the  same  terms.  Calling  the  lot  containing  the  sixteen  acres  a,  and  the 
other  lot  b,  the  purchaser  supposed  he  was  buying  and  intended  to  buy  lot  a, 
while  the  vendor  represented  that  he  was  buying  lot  a,  and  thus  the  minds  of 
both  parties  in  making  their  actual  parol  bargain  met  upon  the  same  point.  But 
in  drawing  up  the  contract  it  was,  through  the  vendor's  fraud,  made  to  include  lot 
6,  and  not  lot  a.  On  discovering  the  fraud,  the  purchaser  brought  his  suit  for  the 
purpose  of  compelling  the  vendor  to  convey  the  lot  really  intended,  lot  a.  This 
relief  would  thus  require  a  virtual  correction,  at  least,  of  the  contract,  and  its 
enforcement  as  corrected.  The  court  refused  to  grant  the  remedy,  holding  that 
the  vendee  must  be  confined  to  a  rescission  and  a  legal  action  for  damages.  The 
opinion  of  Wells,  J.,  is  exceedingly  elaborate  and  acute,  but  would  greatly  limit 
the  l)eneficent  power  of  equity  to  prevent  fraud.  [For  an  elaborate  criticism  of 
this  case,  see  2  Pom  Eq  Jur  ,  §  877.]  The  same  theory  of  theetpnty  jurisdiction 
was  maintained  by  Weston,  J.,  in  the  case  of  Elder  v  Elder,  10  Me.  80,  although 
it  does  not  ajipear  that  anyfi-aud  was  alleged  as  in  the  Massachusetts  case.  See, 
also,  as  more  or  less  supporting  the  same  theory,  Osbom  r  Phelps,  19  Conn.  'o2  ; 
We.stbrook  v.  Harbeson,  2  McCord  Eq  112  ;  [Davis  v  Ely,  104  N  C  IG]  ;  and 
Best  V  Stow,  2  Sandf.  Ch  298,  in  which  the  assistant  V  C  .pioted  and  relied 
upon  the  English  decisions  ex(;lusively,  without  a  reference  to  the  numiM-ous 
cases,  even  those  in  New  York,  which  tiad  established  the  xVmerican  doctrine. 
362 


J 


350  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

written  agreement  so  that  it  shall  not  include  all  the  subject-matter 
originally  within  its  scoi)e,  does  not  contiict  with  this  statute  ;(1)  but 
a  reformation  and  enforcement  based  upon  parol  evidence,  by  whicli 
the  written  contract  is  made  to  operate  upon  a  new  and  distinct  sub- 
ject-matter, estate,  or  interest,  is  in  direct  violation  of  tlie  legislative 
mandate,  and  a  gross  usur^iation  of  powe;-  by  the  court,  since  it  gives 
effect  to  a  merely  verbal  agreement  in  relation  to  land  which  is 
expressly  prohibited  by  the  statute. 

Sec.  200.  It  is  not  necessary  nor,  perhaps,  appropriate  for  me  to 
enter  into  any  detailed  examination  of  these  tw^o  theories  of  the  equi- 
table jurisdiction  which  stand  in  such  marked  opposition  to  each  other. 
The  general  doctrine  first  stated,  which  extends  the  remedial  pow-er 
of  equity  over  both  classes  of  contracts,  is,  in  my  opinion,  in  complete 
harmony  with  the  fundamental  principles  of  equity  concerning  the 
relief  to  be  granted  in  cases  of  fraud  or  of  mistake.  The  narrower 
doctrine  has,  in  fact,  no  necessary  connection  with  the  subject  of 
specific  performance.  The  principles  which  underlie  this  theory,  and 
which  are  so  ably  advocated  by  the  Massachusetts  court,  would,  if 
carried  out  to  their  legitimate  and  natural  results,  work  a  virtual 
revolution  in  equity  jurisprudence,  and  would  confine  its  remedial 
functions  within  very  naiTOw  limits,  overturning  doctrines  and  rules 
which  have  been  regarded  as  settled  since  the  earliest  periods  of  the 
equity  jurisdiction.  They  would  greatly  abridge  the  remedy  of 
reformation ;  they  would  prevent  the  court  from  establishing  and 
enforcing  parol  contracts  w'hioh  the  defendant's  actual  fraud  had  pre- 
vented from  being  put  into  writing;  and,  in  fact,  these  principles 
cannot  be  reconciled  with  the  doctrines  upon  which  the  jurisdiction 
of  equity  to  enfore  parol  contracts  in  cases  of  part  performance,  is 
rested.  The  statute  of  frauds  is  no  real  obstacle  in  the  way  of 
administering  equitable  remedies  so  as  to  promote  justice  and  prevent 
wrong.  Equity  does  not  deny  or  overrule  the  statute  ;  but  it  declares 
that  fraud — and  the  same  is  true  of  mistake — ^^creates  obligations  and 
confers  remedial  rights  which  are  not  within  the  statutory  prohibi- 
tion— in  respect  of  them  tlie  statute  is  uplifted.(2) 

(1)  The  cases  hold,  in  conformity  with  this  view,  that  the  complete  waiver  or 
abandonment  of  a  written  contract  concerning'  land,  by  a  subsequent  parol 
bargain,  does  not  conflict  with  the  statute. 

(2)  See  the  language  of  Lord  Westbury  in  McCormick  v.  Grogan,  L.  R.  4  II.  L. 
82,  97. 

363 


THE    CONTRACT  MUST  BK  FREE   FROM  FRAUD.  3iil 

SECTION  XIV. 

The  contract  must  he  free  from  fraud. 

Section  267.  It  requires  no  authority  to  show  that  fraud,  which 
may  avoid  eveiy  juridical  transaction,  is  a  reason  for  refusing  to  com- 
})el  the  specific  execution  of  a  contract.  The  essence  of  fraud  is 
knowledge  on  the  part  of  the  person  'committing  it,  from  which  the 
law  always  imputes  to  him  the  intent  (which,  in  most  instances,  actu- 
ally exists,  and  is  not  a  mere  legal  inference)  to  deceive.  The  par- 
ticular forms  which  fraud  assumes,  the  special  acts  which  it  employs 
as  the  means  of  accomplishing  its  deceptive  purpose,  are  numberless. 
They  may  all,  however,  whether  consisting  in  words  or  deeds,  or 
omissions,  be  reduced  to  two  general  classes :  1,  those  which  are  affirma- 
tive, false  representations ;  2,  those  which  are  negative,  fraudulent 
concealments.  The  former  class  has  been  already  discussed  in  the 
foregoing  Section  XII,  and  the  present  section  will  be  confined  to  "con- 
cealments," and  some  special  modes  or  kinds  of  deception  which  are 
often  resorted  to  in  connection  with  the  contract  of  sale.(l) 

Concealments. 

Sec.  268.  It  was  shown  in  the  foregoing  section  that  when  a  repre- 
sentation is  not.  only  untrue  but  is  fraudulent — that  is,  when  the 
party  making  it  has  either  a  knowledge  of  its  falsity  or  no  belief  in 
its  truth,  so  that  he  is  legally  charged  with  an  intention  to  deceive 
— it  will  not  only  prevent  a  specific  performance,  but  may  also  be  a 
ground  for  rescinding,  or  sometimes  reforming,  the  contract  in  equity, 
or  for  a  recovery  of  damages  in  an  action  at  law  for  the  deceit,  or 
for  defeating  an  action  at  law  brought  directly  upon  the  agree- 
ment. This  fraudulent  element,  however,  is  not  essential  in  order 
to  constitute  a  defense  to  a  suit  in  equity  for  a  specific  enforcement. 
If  the  representation  is  untrue  in  fact,  and  thus  misleads  the  other 
party  to  his  injury,  although  the  party  making  it  may  be  ignorant  of 
its  falsity,  and  may  be  innocent  of  any  intention  to  deceive,  the  agree- 
ment based  upon  it  is  thereby  rendered  unfair  and  ineqitable,  and 

(1)  A  specific  performance  must  be  denied  when  the  contract  was  procui-ed  by- 
means  of  duressor  thi-eats,  and  the  court  will  require  a  less. strong- case  than  would 
be  necessary  to  constitute  a  ground  for  rescission.  Miller  v.  Miller,  68  Pa.  St. 
486 ;  Christian  v.  Ransome,  46  Geo.  138  ;  and  a  specific  performance  will  be 
refused  when  the  agreement  was  obtained  by  undue  influence,  as  when  a  son 
obtained  from  his  old  and  infirm  father,  an  agreement  to  convey  his  farm. 
Brady's  Ap]ipal.  66  Pa.  St.  277.  And  the  same  of  a  contract  in  the  obtaining  of 
which  the  plaintiff'  was  guilty  of  bad  faith.     McClellan  v.  Darrah,  50  111.  249. 

;{t)4 


352  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

its  specific  execution  will  be  refused.  The  same  is  true  of  "  conceal' 
meiits."  They  also  may  be  fraudulent,  intentional  suppressions  of 
known  facts  which  the  party  was  in  duty  bound  to  disclose  ;  (»r  imM-c 
omissions  to  certain  facts  without  any  intention  of  deceiving'-  or  mis- 
leading. Concealments  of  the  former  kind  are  not  only  a  ground 
for  withholding  the  remedy  of  specific  , performance,  but  also  for  a 
rescission  in  eqiuty,  for  an  action  of  deceit,  and  for  a  defense  to  an 
action  at  law  on  the  agreement ;  those  of  the  latter  kind  can  only 
avail  to  defeat  a  specific  perfornuince  by  rendering  the  contract  unfair, 
unequal,  or  otherwise  inequitable.  It  is  very  important,  in  comparing 
and  estimating  the  force  of  the  decided  cases,  to  form  and  i)reserve  a 
clear  and  exact  notion  of  this  distinction. 

Same ;  duty  of  vendor  to  disclose. 

Sec.  269.  A  fraudulent  concealment,  therefore,  is  where  one  i)arty 
in  the  preliminary  negotiation,  or  at  the  time  of  entering  into  ^n 
agreement,  knowingly  and  intentionally  conceals,  or,  in  other  words, 
suppresses  a  material  fact,  which,  under  the  relations  existing  between 
them,  it  was  Ids  duty  to  disclose  to  the  other  party,  and  the  contract 
thus  made  cannot  be  enforced  against  the  party  who  has  been  misled, 
and  will  be  rescinded  at  his  suit.  The  principal  difficulty,  in  the  ap- 
plication of  this  doctrine,  is  the  determining  when  a  duty,  in  the 
juridical  sense  of  that  term,  rests  upon  the  person  who  has  knowledge 
of  a  material  fact,  to  communicate  the  same  to  the  other  person  with 
whom  he  is  dealing.(l)     If  there  is  a  relation  of  trust  or  confidence 

(1)  Suppression  of  truth  is  gi-ound  for  refusing-  a  specific  performance.  Young 
V.  Clark,  Prec.  Ch.  538;  Maddefoi-d  v.  Austwick,  1  Sim.  89;  Bonnett  x\  Sadler, 
14  Ves.  526  ;  Di-ysdale  v.  Mace,  2  Sm.  &  Gif.  225;  5  DeG.  M.  &  G.  103  ;  Shirley 
V.  Stratton,  1  Bi-o.  C.  C.  440 ;  Baskomb  v.  Beckwith,  L.  R.  8  Eq.  100,  per  Lord 
RoMiLLY,  M.  R.  "  It  is  of  the  greatest  importance  that  it  should  be  understood 
that  the  most  pei"fect  truth  and  the  fullest  disclosures  should  take  place,  in  all 
cases  where  the  specific  performance  of  a  contract  is  required,  and  that,  if  this 
fails,  even  without  any  intentional  suj)pression,  the  court  will  grant 'relief  to  the 
man  who  has  been  thereby  deceived,  provided  he  has  acted  openly  and  reason- 
ably." See,  al.>^o,  Lucas  v.  James.  7  Hare,  410  ;  Denny  ^).  Hancock,  L.  R.  6  Ch.  1 
But, the  mere  supi)ression  of  acts  as  having  been  done  by  the  plaintiff,  when  the 
defendant  must  have  known  that  they  were  done  by  somebody,  is  not  a  gi-ound 
for  refusing  a  specific  performance.  Haywood  v.  Cope,  25  Beav.  140.  Plaintilf 
had  worked  the  coal  under  his  land,  and  had  abandoned  it  as  unprofitable. 
Twenty  years  afterwards  defendant  cleaned  out  the  pit  and  examined  the  coal  iu 
the  shaft  with  other  persons,  and  subsequently  contracrted  for  a  lease.  The  mine 
turned  out  to  be  woi-thless.  Held,  by  Sir  J.  Romii.ly.  M.  R.,  that  defendant  could 
not  resist  a  specific  jierformance  on  the  ground  that  plaintiff  had  not  connnuni- 
cateil  the  fact  that  he  had  worketl  the  min<^  and  found  it  unprotital)lis  because 
defendant  must  have  known  that  it  had  been  worked  and  abandoned  ])y  some 
one.  Cases  of  actions  at  law  for  deceit,  an<l  of  defenses  on  the  ground  of  fraud 
to  legal  actions  brought  upon  contrac-ts,  may  be  j)ropei-ly  cited   in  illusti-ation  of 

Jt)5 


THE    COyriiACT  MUST  BE   FREE  FROM  tRAUD.  353 

between  the  parties,  if  the  person  knowing  tlie  faci  occupies  a  fiduciary- 
position  towards  the  other,  then  the  duty  to  disclose  is  clear.  It  is 
not  necessary  that  such  fiduciary  relation  should  be  express  ;  in  many 
decided  cases  it  has  been  held  to  exist  from  very  general  circum- 
stances.(1) 

Same  ;  duty  of  vendee. 

Sec.  270.  Whatever  may  be  the  duty  of  the  vendor  to  disclose 
every  fact  which  renders  the  property  less  valuable,  there  is  no  such 
duty  resting  upon  an  intended  purchaser  to  communicate  every  or 
any  fact  within  his  knowledge,  which  renders  the  property  more 
valuable,  and  which  would  therefore  tend  to  enhance  the  price. 
Whatever  may  be  the  dictates  of  a  strict  morality,  the  law,  as  a  practi- 
cal rule  of  common  life,  assumes  that  the  owner  of  property  will  suffi- 
ciently protect  his  own  interests  by  obtaining  himself  all  the  in- 
formation concerning  it. (2)     This  rule  must  be  understood  as  apply- 

the  text,  since  one  principle  controls  both  them  and  the  equitable  suit  for  a  rescis- 
sion. In  Edwards  v.  McLeay,  Coop.  308 ;  2  Sw.  287,  land  was  sold,  a  jiart  of 
which  consisted  of  an  encroachment  tipon  a  common  and  the  rig'hts  of  the  lord  of 
the  manor,  in  relation  to  such  encroachment,  had  not  yet  been  barred  by  lapse  of 
time  ;  these  facts  were  known  to  the  vendor  and  not  disclosed  by  him  to  the  ven- 
dee, and  on  account  of  such  concealment  the  sale,  and  the  conveyance  in  imrsu- 
ance  thereof,  were  rescinded.  In  the  leading-  case  of  Gibson  v.  D'Este,  2  Y.  & 
C.  C.  C.  542,  land  was  sold  over  which  was  a  right  of  way,  which  fact  was  known 
to  the  vendor  or  his  agent,  and  concealed  by  one  or  the  other  of  them  from  the 
jiurchaser.  On  this  account  V.  C.  Knight-Bruce  set  aside  the  contract  and  the 
deed  of  conveyance.  His  decision  was  reversed  by  the  House  of  Lords,  not, 
however,  because  of  any  error  in  the  principle  upon  which  he  had  proceeded,  but 
because  he  had  erred  in  the  application  of  it.  The  House  of  Lords  held  that,  in 
order  to  rescind  a  completed  sale  and  conveyance  under  such  circumstances, 
there  must  be  evidence  showing  clearly  and  directly  the  personal  knowledge  of 
the  principal,  and  a  concealment  by  him  ; — that  such  knowledge  and  concealment 
:)f  the  agent  were  not  sufficient ; — and  that  the  evidence  failed  to  prove  the  neces- 
sary state  of  facts.  See  Wilde  v.  Gibson,  1  H.  L.  Cas.  605.  [For  further  in- 
stance? of  duty  to  disclose,  see  Hartford  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452,  471 ; 
Boswell  V.  Coakes,  27  Ch.  D.  424  ;  Cowan  v.  Sapp,  81  Ala.  525  ;  Kidney  v.  Stod- 
;lai-d,  7  Met.  252  ;  Smith  v.  Osborne,  33  Mich.  410.  For  instances  where  the  duty 
does  not  exist,  see  Laidlaw  ?'.  Organ,  2  Wheat.  178 ;  Hanson  v.  Edgerlv,  29  N. 
H.  343 ;  Smith  v.  Countryman,  30  N.  Y.  655  ;  Fisher  v.  Budlong,  10  R.'  I.  525  ; 
Flynn  v.  Van  Kleek,  (Iowa)  58  N.  W.  Rep.  1091.] 

(1)  See  White  v.  Flora,  2  Overton,  426 ;  McNeil  v.  Baird,  6  Munf.  316 ;  Pollard 
V.  Rogers,  4  Call.  439 ;  Halls  v.  Thompson,  1  Sm.  &  Mar.  443 ;  White  v.  Cox,  3 
Hay  w.  213  ;  all  of  which  hold  that  concealment  of  material  facts  will  avoid  a  con- 
tract in  equity.  [Torrey  i).  Bank  of  Orleans,  9  Paige,  649;  Fisher  v.  Budlong, 
10  R.  I.  525  ;  Schaeffer  v.  Sleade,  7  Blackf.  178.  Principal  and  agent :  Cheney  v. 
Gleason,  125  Mass.  166 ;  Porter  v.  Woodrufi;  36  N.  J.  Eq.  174  ;  Condit  v.  Black- 
well,  22  N.  J.  Eq.  481  ;  Casey  v.  Casey,  14  111.  112 ;  Comstock  v.  Comstock,  57 
Barb.  453 ;  Moore  ly  Middlebaum,  8  Mich.  433.  Trustee  and  cestui  que  trust: 
Jones  V.  Lloyd,  117  111.  597  ;  Porter  v.  Woodruflf,  36  N.  J.  Eq.  174.  Attorney  and 
client:  Whitehead  v.  Kennedy,  69  N.  Y.  462;  Berrien  v.  McLane,  1  Hoff.  Ch. 
421;  Starr  ■?).  Vanderheyden,  9  Johns,  253;  Miles  ■«.  Erwin,  1  McCord  Ch.  524 ; 
Busey  i\  Hardin,  2  B.  Mon.  407.  Partners:  Pomeroy  v.  Benton,  77  Mo.  64; 
Geddes's  Appeal,  80  Pa.  St.  442.  See  St.  Louis  Ry.  v.  Beidler,  45  Ark.  17.]  In 
Snelson  v.  Franklin,  6  Munf.  210,  the  owner  of  a  lease  contracted  to  sell  it  without 
showing  it  to  the  vendee  or  telling  him  of  a  certain  clause  in  it  which  stipulated, 
that  in  case  the  building  leased  should  be  burned,  the  lease  should  thereupon 
be  ended.  The  purchaser  made  the  agreement  in  ignorance  of  this  provision. 
Soon  after  the  building  was  burned,  and  it  was  held,  at  the  suit  of  the  purchaser, 
that  the  agreement  should  be  rescinded,  .and  his  notes  given  for  the  purchase-price 
should  be  surrendered  by  the  vendor  and  canceled.  Rasvdon  v.  Blatchford,  1 
Sandf.  344 ;  Brown  v.  Montgomery,  20  N.  Y.  287  ;  Holmes'  A]ipeal,  77  Pa.  St.  50. 

(2)  Fox  V.  Mackreth,  2  Bro.  C.  "C.  400,  420,  an  intended  purchaser  of  land  on 
-which  he  knows  there  is  a  mine  need  not  inform  the  owner,  who  is  ignorant  of 

366 


■354  SPECIFIC   PKnFOliMAXCK    OF   COyTRACTS. 

ing  only  to  a  claim  for  rescission,  since  a  concealment  V)v  the 
purchaser  certainly  may  be  good  reason  for  denying  a  specific 
enforcement  for  his  bi>netit.(l)  All  that  is  allowed  to  the  purchaser, 
however,  in  such  a  transaction,  even  to  prevent  a  rescission  of  the 
contract,  is  mere  silence  on  his  part.  If,  to  the  suppression  of  material 
facts  within  his  knowledge,  there  is  addend  any  atiirmative  misrepre- 
sentation, even  the  slightest  positive  deviation  from  the  truth  tending 
to  blind  the  eyes  of  the  vendor,  to  draw  away  his  attention  from  the 
actual  condition  of  affairs,  and  thus  to  mislead  him  into  making  a 
sale  at  all  to  his  disadvantage — even  though  there  might  be  but  a 
misguiding  w^ord — the  contract  procured  in  this  artful  manner  could 

the  fact,  and  the  contract  of  purchase  would  be  valid.  In  Dolinau  v.  Nokes,  22 
Beav.  402,  a  tirst  morttifag'ee  having'  made  arrangements  for  an  advantageous  sale 
of  the  land,  bought  the  interest  of  the  second  mortgag-ee  at  a  discount,  without 
informing  him  of  the  said  prospects  for  a  sale.  A  suit  by  the  second  mortgagee 
to  set  aside  the  contract  between  himself  and  the  first  mortgagee,  on  the  ground 
of  the  latter's  concealment,  was  dismissed.  In  Livingston  v.  Peru  Iron  Co.,  2 
Paige,  390,  the  purchaser  applied  to  the  owner  of  wild  land,  representing  that  it 
was  worth  nothing  except  for  sheep  pasture,  and  suppressing  a  fact  which  he 
well  knew  and  the  vendor  did  not,  that  there  was  a  vahiable  mine  on  the  land. 
Ch.  "Walworth  refused  to  set  aside  the  sale  procured  in  this  manner.  He  said : 
"  Although  it  had  been  held  that  the  suppression  of  a  material  fact  by  either 
party  to  the  contract,  was  sufficient  to  avoid  the  contract,  that  the  coui-ts  of  New 
York  had  never  g'one  to  that  length  ;  although  very  sHght  circumstances  in  addi- 
tion to  the  intentional  concealment  of  a  fact  have  been  considered  sufficient  to 
constitute  a  fraud  upon  the  other  party."  One  would  suppose  that  the  vendee's 
positive  misrepresentation  in  this  case  was  enough  to  satisfy  the  requirements  of 
the  chancellor's  own  rule.  The  decision  seems  to  be  opposed  to  idl  sound 
equitable  princij^Ies  See,  also.  Drake  v  Collins,  5  How  (Miss.)  253;  [Fisher 
V  Budlong,  10  R  I  525 ;  Coddington  v.  Goddard,  16  Gray,  436].  Per  contra — 
see  Bowman  v.  Bates,  2  Bibb,  47 — a  person  discovered  a  valuable  salt  spring  on 
another's  land,  and  bought  the  tract  from  him  at  an  ordinaiy  price,  without  dis- 
closing his  discovery.  The  sale  was,  for  that  reason,  set  aside.  In  law  the  cases 
seem  to  have  settled  the  rule  that  a  purchaser  is  not  liable  to  an  action  for  deceit 
for  misrepresenting'  to  the  vendor  the  latter's  chance  to  sell,  or  the  probability  of 
his  getting  a  better  price  than  the  one  offered  by  the  purchaser  himself.  This  is 
put  upon  the  ground  that  such  representations  are  essentially  mere  statements  of 
opinion  rather  than  of  fact.  For  the  same  reason,  it  would  seem  that  such  state- 
ments should  not  be  a  defense  to  an  action  at  law  brought  upon  the  contract. 
See  Vernon  v.  Keys,  12  Ejist,  632,  per  Lord  Ellexborough. 

(1)  In  Phillips  V.  Homfray,  L.  R.  6  Ch.  770,  the  owner  of  a  colliei-y  had  con- 
tracted to  purchase  an  adjoining  coal  mine  from  the  proprietor  thereof.  The  vendee 
concealed  the  fact  that  he  had  already  got  out  a  considerable  (piantily  of  coal 
from  the  vendor's  mine,  without  the  lattei-'s  knowledge.  This  conc(-alment  was 
held  a  sufficient  ground  to  prevent  a  specific  pei-formance  at  the  suit  of  the 
vendee,  although  it  was  not  shown  that  the  pui-chase  ha<l  been  made  at  any 
under-vahiatioii — i.  e.,  the  jiurchaser  had  agreeil  to  jiay  the  \n■\^^^\  on  tlie  supposi- 
tion that  all  the  coal  was  still  in  situ  [See,  also.  Keen  v-  James,  39  N  J.  Eip 
527];  Swimm  v  Bush,  23  Mich.  99. 

ao7 


THE    CONTRACT  MUST  BE   FREE   FROM  FRAUD.  355 

not  pass  the  scrutiny  of  a  court  of  equity ;  but  would  be  avoided,  at 
the  suit  of  the  veiidor,(l) 

Same  ;  unintentional  failure  to  disclose  material  facts. 

Sec.  271.  Thus  far  I  have  spoken  only  of  conceahuents  which,  from 
their  elements  of  knowledge  and  intention,  are  fraudulent,  and  wliich 
may  avoid  the  contract  aft'ected  by  them,  and  which  afurtuni  furui.ih 
the  most  complete  and  satisfactory  ground  for  refusing  the  remedy  of 
specific  performance.  In  addition  to  these,  the  suppression  of  a 
material  fact,  or  the  failure  to  communicate  a  material  fact  by  one 
party,  without  any  intent  or  purpose  of  deceiving  or  misleading  the 
other,  while  not  vitiating  the  agreement,  may  render  it  so  unfair, 
unequal,  or  hard  that  a  court  of  equity,  acting  in  accordance  with  its 
well-settled  principles  as  developed  in  the  preceding  sections  of  this 
chapter,  will  refuse  to  enforce  the  contract  against  the  party  who  was 
misled.  In  such  a  case  the  two  contracting  parties  do  not  stand  upon 
an  equality ;  one  has  knowledge  of  important  facts  in  respect  of  which 
the  other  is  ignorant.  That  such  an  inequitable  position  may  prevent 
a  specific  performance  has  already  been  stated.(2) 

Other  special  forms  of  fraud  ;  puffers. 

Sec.  272.  Where  property  is  put  up  for  sale  at  public  auction  the 
secret  employment  of  a  person  or  persons  by  the  vendors  to  bid 
and  thus  to  run  up  the  price,  the  by-standers  not  knowing  that 
these  bids  are  merely  formal  and  collusive,  is  technically  called 
"puffing,"  and  the  persons  employed  "puffers."  With  respect  to 
the  legality  of  the  practice  and  the  validity  of  sales  made  when 
puffing  has  been  resorted  to,  there  has  been  much  conflict  of  judi- 
cial opinion,  and  the  dispute  has  settled  into  a  direct  antagonism 
between  the  courts  of  law  and  those  of  equity,  the  former  tribunals, 
strangely  enough,  taking  the  strictest  view  and  condemning  the 
practice  in  toto,  while  the   latter  admit  it  to  a  very  limited  extent. 

(1)  Lord  Eldon  said,  in  reference  to  such  misstatements  added  to  concealment : 
"  A  very  little  is  sufficient  to  affect  the  application  of  that  principle.  If  a  word — 
if  a  single  word  be  di-opped  which  tends  to  mislead  the  vendor,  that  principle 
will  not  be  allowed  to  operate."  Turner  v.  Harvey,  Jac.  169,  178  ;  Davies  v. 
Cooper,  5  My.  &  Cr.  270.  In  Davis  v.  Abraham,  5  W.  R.  (1856-7)  405,  an  attor- 
ney bought  of  a  person  who  was  embarrassed,  and  who  was  selling  without  any 
professional  advice,  and  untruly  stated  to  the  vendor  that  the  nature  and  title  of 
the  land  was  such  that  no  one  but  a  professional  man  would  be  willing  to  buy  it — 
and  on  account  of  this  misstatement  the  court  refused  to  enforce  the  sale  against 
the  vendor      [See,  also,  Walmsley  v.  Griffith,  10  Ont.  Ap.  R.  327]. 

(2)  Many  of  the  cases  cited  in  the  two  preceding  sections,  as  examples  of  unde- 
signed misrepresentations  or  of  mistakes,  may  also  be  referred  to  as  illustrations  of 
the  class  of  concealments  mentioned  in  the  text.  Shirley  v.  Stratton,  1  Bro.  C.  C. 
440  ;  Dean  v.  Rastron,  1  Anst.  64  ;  EUard  v.  Lord  Llandatf,  1  Ball  &  B.  241 ;  Hesse 
V.  Briant,  6  DeG.  M.  &  G.  623. 

368 


356  SPECIFIC  PERhOHMANCK   OF  CONTRACTS. 

Of  course,  tlie  case  is  very  different  and  free  from  all  dilliculty  whore 
a  right  to  make  such  bidding  is  openly  reserved  by  the  vendor  as  one 
of  the  conditions  of  the  sale.  The  whole  subject  has  beon  recently 
regulated  by  statute  in  England,  and  similar  statutes  are  found  in 
some  of  the  American  states.  In  the  absence  of  Sjiocial  lcgi^hlTion, 
three  difierent  conditions  of  circumstance's  may  exist,  giving  rise  to 
those  separate  rules. 

Ordinary  sale,  -with  no  preliminary  announcement. 

fSiif.  278.  1.  Where  an  auction  sale  is  macU^,  in  the  absence  of  any 
preliminary  announcement  that  "  the  sale  will  be  without  reservo,"  nor 
any  equivalent  statement,  the  ride  is  settled  at  law,  in  l']ngland  and 
generally  in  this  country,  that  any  "puffing"  is  fraudulent,  and  ren- 
ders the  sale  voidable  at  the  option  of  the  purchaser.  (1)  But  the  rule 
is  also  settled  in  the  courts  of  equity,  that  one  puffer  may  then  be 
employed  on  behalf  of  the  vendor,  and  although  liis  agency  is  unknown 
to  the  bystanders  and  to  the  actual  purchasers,  the  contract  of  sale  is 
nevertheless  valid  and  binding.  In  other  words,  "  puffiing,"  to  this 
limited  extent — of  one  person  to  make  bids — is  not  fraudulent. (2) 

Sec.  274.  2.  If  at  a  sale,  such  as  described  in  the  last  paragraph, 
where  no  announcement  is  made  that  the  sale  is  without  reserve,  two 
or  more  puffers  are  employed  for  the  vendor,  and  take  a  part  in  the 
bidding,  the  sale  is  thereby  rendered  fraudulent  in  equity,  as  well  as  at 
law,  it  will  be  set  aside  at  the  suit  of  the  purchaser,  and  a  perform- 
ance of  the  contract  cannot  be  enforced  against  his  objection.  Equity 
had  reluctantly  admitted  the  use  of  one  puffer  to  protect  the  interests 
of  the  vendor,  and  prevent  a  ruinous  sacrifice ;  as  one  must  always  be 
enough  for  this  purpose,  the  effect  of  two  or  more  bidding  against 
each  other  would  necessarily  be  to  enhance  the  price  by  means  of  a 
pretended  and  deceiving  competition. (3) 

(1)  Thornett  v.  Haines,  15  M.  &  \V.  372,  per  Parke,  B.  ;  Crmvder  v.  Austin,  3 
Bing.  3G8  ;  Wheeler  v.  Collier,  1  Mood,  k  Walk.  123  ;  Fuller  v.  Abrahams,  3  Brod. 
&  Bing-.  116  ;  6  Moore.  316.  This  rule  is  approved  by  Ch.  Kent,  in  Coniin.  2 
Vol.,  pp.  538,  539  (oth  ed.),  and  by  Story,  in  Eq.  Jur.  j  293. 

(2)  Bramley  v.  Alt,  3  Ves.  620  ;  Smith  v.  Clarke,  12  Ves.  477  ;  Woodward  v. 
Millei-,  2  Coll.  C.  C.  279  ;  Flint  v.  Woodin,  9  Hare,  618.  In  Woods  v.  Hall,  1  Dev. 
E(l.  415,  a  putter  was  employed  where  no  announcement  seems  to  have  been 
made,  but  the  vendor  reiii'esented  that  the  bidding  by  such  putter  was  made  on 
his  own  (the  puffer's)  account ;  and  the  sale  was  held  fi-audulent  and  set  aside. 
Hei-e  the  express  false  representation  supplied  the  positive  element  of  fiviud,  and 
distinguishes  the  case  from  those  described  by  the  text. 

(3)  Bramley  v.  Alt,  3  Ves.  620  ;  Thornett  v.  Haines,  15  M.  &  W.  372,  per  Parke, 
B. ;  Conolly  v.  Parsons,  3  Ves.  625 ;  Meadows  v.  Tanner,  5  Madd.  34 ;  Robinson 
u  Wall.  10  Beav.  61 ;  2  Ph.  372.  In  Morton  v.  Bell,  L.  R.  1  Ch.  10,  a  sale  at 
auction,  one  of  the  conditions,  being  that  "the  highest  bidder  shall  be  purchjiwer," 

869 


TBE   CONTRACT  MUST  BE  FREE  FROM  FRAUD.  357 

Sale  without  reserve. 

8ec.  275.  3.  Finally,  where  a  preliminary  announcement  is  made, 
or  it  is  stated  as  one  of  the  conditions,  that  "  the  sale  will  be  without 
reserve,"  or  words  having  substantially  the  same  import,  this  is  con- 
strued, both  in  equity  and  at  law,  as  a  pledge  on  the  part  of  the  ven- 
dor, that  the  competition  shall  be  absolutely  free,  that  no  means  shall 
be  used  to  enhance  the  price,  and  that  the  property  will  be  knocked 
off  to  the  highest  bidder,  whatever  be  the  amount  of  the  bid,  whether 
large  or  small.  The  employment  of  even  one  puffer,  and  a  fortiori  of 
more  than  one,  is  a  fraudulent  act,  and  renders  the  sale  voidable  in 
equity,  as  well  as  at  law,  and  is,  of  course,  a  ground  for  refusing  a 
specific  performance. (1) 
Legislation  on  this  subject. 

Sec.  276.  4.  The  English  statute  recites  the  fact,  that  different 
rules  have  prevailed  in  equity  and  in  law,  and  declares  it  to  be  expe- 
dient that  the  same  rule  should  regulate  both  jurisdictions.  It  there- 
upon enacts  that  the  employment  of  puffer  or  puffers  shall  be  unlawful 
ii)  every  case,  unless  the  right  to  employ  such  a  means  of  enhancing 
the  price  shall  be  expressly  reserved.(2) 

Secret  combination  to  prevent  competition  at  auctions. 

Sec.  277.  As  a  secret  arrangement  between  the  vendor  and  his 
no  announcement  that  the  sale  would  be  without  i-eserve,  nor  that  any  one  would 
bid  for  the  vendor.  An  agent  of  the  vendor  bid  2,500Z. ;  the  auctioneer  then  bid 
2,G00Z.,  and  the  agent  and  the  auctioneer  continued  bidding  against  each  other 
until  the  price  reached  3.600Z. — defendant  then  bid  3,650Z.,  and  the  property  was 
struck  off  to  him.  Here  were,  therefoi-e,  two  puffers  for  the  vendor.  Held,  that 
the  vendor  could  not  enforce  the  contract.  The  court  disap^jroved,  and  even 
questioned  the  rule  allowing  one  puffer.  [Where  the  lictitious  bidding  is  close 
•without  the  vendor's  knowledge,  it  is  no  defense  to  his  suit  for  specific  perform- 
ance.    Union  Bank  v.  Munster,  37  Ch   D.  51]. 

(1)  Robinson  v.  Wall,  2  Phil.  375,  per  Lord  Cottenham  ;  Thornett  v.  Haines,  15 
M.  &  W.  367.  and  cases  therein  cited  ;  Meadows  v.  Tanner,  5  Mad.  34.  In  Rob- 
inson V.  Wall,  supra,  and  10  Beav.  61,  tlie  assignees  of  an  insolvent  offered  his  life 
interest  in  certain  land  for  sale  at  auction  '*  without  reserve ;"  they  had  previously 
made  a  secret  arrangement  with  a  person  interested  in  the  remainder,  that  he 
should  bid  35,000Z.,  and  the  pi-operty  would  be  struck  off  to  him  unless  higher 
price  was  offered.  The  defendant,  ignorant  of  the  arrangement,  bought  the 
property,  bidding  50,O0OZ.  for  it.  The  sale  to  him  was  held  to  be  vitiated  by  the 
vendors'  fraudulent  practice.  Gilliat  v.  Gilliat,  L.  R.  9  Eq.  60,  arose  under  the 
late  statute,  30  &  31  Vict.,  ch.  48,  but  still  illustrates  the  rule  stated  in  the  text. 
Land  was  sold  at  auction,  one  condition  being  that  the  sale  was  "  subject  to  a 
reserve  bidding,"  which  was  29  OOOZ.  ;  no  other  reservation  or  statement  was 
made  on  the  subject.  A  puffer  was  employed  who  ran  the  property  up  by  sev- 
eral bids  to  nearly  29,000?.,  when  the  purchaser  bid  that  sum,  and  the  land  was 
struck  off  to  him.  Held,  an  illegal  sale  under  the  statute ;  that  the  statute 
■"  makes  a  distinction  between  reftertied  hklding  and  a  re.tprved  right  to  hid."  Also 
that,  under  the  statute,  any  sale  is  illegal  when  a  puffer  has  been  employed, 
unless  the  Hght  to  employ  lit  in  was  expressly  reserved,  and  a  "reserved  bidding" 
is  i.ot  reserved  right  to  employ  a  puffer. 

(2)  30  and  31  Vict.,  ch.  48. 
370 


358  SFKCIFIC   PKUFOHMANCK    OF  COMTliACrS. 

agents  for  the  purpose  of  enhancing  tlie  price  may  l)o  a  IVaiid  on  the 
purchaser,  so,  on  the  other  hand,  secret  agreenieuts  between  persons 
desiring  to  purchase  property  for  less  than  its  value  at  a  public  sale, 
that  they  will  not  bid  against  each  other,  and  that  the  purchase  made 
by  one  of  the  parties  at  a  low  price,  consequent  upon  such  arrange- 
ment, shall  enure  to  the  benefit  of  the  ot/her  parties,  are  fraudulent  as 
against  the  vendor,  and  a  sale  made  under  the  operation  thereof  will 
be  rescinded  at  his  suit.(l)  An  agreement  or  understanding  among 
bidders,  whose  interests  are  antagonistic,  for  the  purpose  of  prevent- 
ing competition  and  thereby  procuring  the  property  to  be  sold  at  less 
than  its  fair  value,  is  clearly  a  fraud  upon  the  vendor.(2) 

Fraud  by  agents. 

Sec.  278.  Since  a  corporation  must  act  through  agents,  and  since 
it  is  regarded  as  a  legal  entity  incapable  of  fraud  as  it  is  inca- 
pable of  intention,  the  fraud  of  those  classes  of  agents  which 
must  be  considered  as  its  immediate  representatives,  in  whom  its 
corporate  powers  are  primarily  lodged,  is  necessarily  imputed  to  the 
corporation  itself,  and  produces  the  same  effects  as  though  commit- 
ted by  it.  Contracts,  therefore,  to  which  a  corporation  is  a  party,  and 
from  which  it  would  derive  a  benefit  or  obtain  a  right  against  the  other 
party,  are  affected  by  the  frauds,  whether  false  representations  or 
concealments,  of  its  agents  by  whom  they  wei'e  negotiated  and  con- 
cluded, in  the  same  manner  and  to  the  same  extent  as  though  such 
agents  had  entered  into  the  agreements  on  their  own  behalf  as  the 
principals ;  the  agent's  fraud  either  vitiates  the  contract,  rendering  it 
liable  to  be  rescinded,  or  constitutes  a  ground  for  refusing  to  enforce 
it  at  the  suit  of  the  corporation. (3)  How  far  the  fraud  of  an  agent 
generally  renders  the  principal  liable,  and  exposes  such  principal  either 
to  an  action  at  law  for  deceit,  or  to  a  suit  in  equity  for  a  rescission,  or 
furnishes  a  defense  to  a  suit  at  law  brought  upon  the  contract  by  the 
principal,  are  questions  which  have  given  rise  to  much  discussion  and 

(1)  Jones  V.  Caswell,  3  Johns.  Cas.  29  ;  Doolin  v.  "Ward,  6  Johns.  194;  'Wilbin- 
•»,  Howe,  8  Johns.  444;  Thompson  v.  Davies,  13  Johns.  112;  Dudley  v.  Little, 
2  Ham.  505;  Piatt  v.  Oliver,    1  McLean,  295  ^    Gulick  v.   Ward,  5  Ilalsted,  87  ; 

Hamilton  v.  Hamilton,  2  Rich.  Eq.  355  ;  Veazie  v.  Williams,  8  How.  134].  Such 
arrangements  may,  however,  be  made  with  a  worthy  and  legal,  and  not  a  fraudu- 
lent, intent ;  and  if  done  in  good  faith,  and  to  promote  the  interests  of  all  the 
parties,  they  are  not  open  to  obje(;tion.  and  do  not  invalidate  the  sale.  Wolfe  v. 
Luyster,  1  Hall,  146  ;  Smith  v.  Greenlee,  2  Dev.  126  ;  SmuU  v.  Jones,  1  Watts  & 
Serg.  128  ;  Phippen  v.  Stickney,  3  Mete.  384,  and  cases  cited. 

(2)  Smith  V.  Greenlee,  2  Dev.  120  ;  Morehead  v.  Hunt,  1  Dev.  Eq.  35  ;  Moncrief 
V.  Goldsborough.  4  Har.  &  Mc-Hen.  281  ;  Troughton  n.  Johnston,  2  Hayw.  328. 

(3)  Ranger  v.  Great  Western  Ry.  Co.  5  H.  L.  Cas.  72  ;  National  Exchange  Co. 
V.  Drew,  2  McQueen,  103;  Angell  &  Ames  on  Corp.  §§  310,  311. 

371 


TUK    COMRACr  MUST  BE   FREE   FHOM   ILLEGALITY.  359 

great  conflict  of  opinion  ;(1)  but  it  does  not  come  within  tlie  province 
of  this  work  to  attempt  their  answer.  There  can  be  no  doubt,  how- 
ever, that  in  accordance  with  the  general  principles  upon  which  equity- 
administers  this,  its  peculiar  remedy,  such  fraud  is  a  sufficient  ground 
for  refusing  to  decree  a  specilic  performance. 

Waiver. 

Sec.  279.  Since  fraud,  whether  consisting  of  false  representa- 
tions or  for  intentional  concealments,  or  of  any  other  deceptive  prac- 
tices, does  not  render  a  contract  absolutely  void,  but  merely  voidable 
at  the  option  of  the  injured  party,  such  party  may  always  waive  the 
objection  which  might  otherwise  be  taken  in  his  behalf,  and  thereby 
ratify  the  agreement  and  make  it  as  binding  as  though  it  had  been 
originally  free  from  all  vitiating  incidents  or  elements.  The  waiver 
may  be  express,  or  it  may  consist  in  acts  whereby  the  party  shows  an 
intention  to  adopt  the  contract,  or  whereby  he  claims  and  enjoys  in 
whole  or  in  part  the  benefits  which  it  confers.  Such  acts,  however,  in 
order  to  constitute  a  waiver  must  be  done  with  a  full  knowledge  of  all 
the  facts ;  for  a  person  cannot  be  held  to  have  waived,  by  his  conduct, 
a  fraud  of  which  he  was  at  the  time  wholly  ignorant. (2)  The  doctrine 
of  waiver  applies  in  the  same  manner  and  extent  to  the  case  of 
mistake. 


SECTION  XV. 

The  contract  must  he  free  from  illegality. 

Section  280.  An  illegal  contract  is,  as  a  rule,  void — not  merely  void- 
able— and  can  be  the  basis  of  no  judicial  proceeding.  No  action  can 
be  maintained  upon  it,  either  at  law  or  in  equity.  This  impossibility 
of  enforcement  exists,  whether  the  agreement  is  illegal  in  its  inception, 
or  whether,  being  valid  when  made,  the  illegality  has  been  created  by 

(1)  See  Cornfoot  v.  Fowke,  6  M.  &  W.  358  ;  Fuller  -».  Wilson,  3  Q.  B.  58,  68  j 
National  Exch.  Co.  v.  Drew,  2  McQueen,  103 ;  Wilde  v.  Gibson,  1  H.  L.  Cas.  605, 
615 ;  Attwood  v.  Small,  6  CI.  &  Fin.  413,  per  Lord  Lyndhurst  ;  Hern  v.  Nichols, 
1  Salk.  289. 

(2)  See  Atwood  v.  Small,  6  CI.  &  Fin.  432,  per  Lord  Lyndhurst.  In  Macbryde 
V.  Weeks,  22  Beav.  533,  the  defendant,  with  complete  knowledge  of  all  the  facts, 
notified  the  plaintiff  that  the  contract  would  be  rescinded  unless  the  plaintiff  should 
perform  on  his  part  by  a  certain  day  specified,  but  in  this  notice  he  (the  defend- 
ant) offered  to  perform  his  own  part  of  the  contract— he  was  held  by  this  notice 
and  the  offer  made  in  it,  to  have  waived  an  objection  which  might  have  been 
raised  on  account  of  any  false  representations  made  by  the  plaintiff.  Allen  t).  Cerro 
Gordo  Co.,  40  Iowa,  349. 

372 


360  SPECIFIC  FEKFO/iMAyCK  OF  COyTRACTS. 

a  subsequent  statute. (1)  The  illegality  here  spoken  of,  although 
analogous  to  some  kinds  of  constructive  fraud,  is,  of  course,  to  be  care- 
fully distinguished  from  fraud.  Agreements  are  often  loosely  spoken 
of  as  illegal,  when  they  are  merely  fraudulent,  or  even  when  the 
parties  simply  lacked  the  capacity  to  enter  into  a  binding  engage- 
ment. Illegality  is  an  element  which  wholly  vitiates  the  contract 
between  the  immediate  parties,  as  w'ell  as  in  respect  to  third  pcrsdus, 
and  still  it  is  an  element  with  which  sodiety  and  the  state,  as  repre- 
sented by  the  courts,  are  more  immediately  concerned  than  even  the 
parties  themselves.  If  a  contract  is  tainted  with  the  vice  of  illegality, 
it  is  held  to  create  no  obligation,  not  from  any  concern  for  the  indi- 
vidual rights  of  the  parties  who  may  be  equally  in  fault,  but  from  a 
regard  for  the  public.  In  the  case  of  fraud,  or  mistake,  the  wrong  is 
personal,  and  may  be  waived  by  the  injured  party;  in  the  case  of 
illegality  the  wrong  is  done  to  society,  and  the  state,  ttirough  its 
judicial  officers,  must  control  the  penalty.  The  illegality  may  iiitiere 
either  in  the  consideration  or  in  the  very  promises  and  stj[)ulations  of 
the  agreement.  Again,  if  the  illegality  is  contined  to  the  considera- 
tion, that  consideration  may  consist  of  two  distinct  and  separable 
parts,  one  of  which  is  legal,  while  the  other  is  alone  tainted  with  the 
defect.  Or,  finally,  if  the  illegality  is  found  only  in  the  promises  and 
stipulations,  these  may  consist  of  separate  and  divisible  terms,  some 
of  wdiicli  are  valid  and  the  others  invalid.  Various  special  rules  are 
based  upon  these  distinctions,  but  their  discussion  belongs  rather  to  a 
treatise  upon  the  general  law  of  contracts. 

(1)  Atkinson  u  Ritchie,  10  East,  530,  534;  Barker  v.  Hodgson,  3  M.  &  S.  267; 
Esposite  V.  Bowden,  4  El  &  Bl.  963  In  the  case  where  a  contract,  urij^inally 
valid,  has  become  illeg-al  from  subsequent  leg-islation,  the  courts  strive  to  enforce 
it  if  possible,  or  as  far  as  jjossible.  Betterworth  v  Dean  of  bt.  Paul.  Sel.  Cas  m 
Ch.  66;  Thomson  v.  Thomson,  7  Ves.  473;  Pratt  ■».  Adams,  7  Paifje.  615.  A 
court  of  equity  will  not  specitically  enforce  a  contract  which  yrowB  directly  out  of 
another  which  is  illegal,  immoral,  or  champcrtous.  Bowman?).  Cunninc^ham,  7vS 
111.  48.  Nor  a  contract  founded  on  an  illegal  consideration.  Paton  v.  Stewart,  7S 
111.  481.  The  foUowng  recent  cases  furnish  examples  of  contracts  illegal,  because 
opposed  to  the  general  jirinciples  of  jiublic  poticy  ;  Contract  by  a  director  with 
the  railroad  comi^any  for  the  jjurchase  of  company  projierty.  Flanagan  )•.  Great 
Western  R'y  Co.,  L.  R.  7  Eq.  116.  Contracts  of  purchase  at  auction,  made  under 
secret  arrangements,  by  which  comxietition  was  prevented.  Whitaker  <v.  Bond, 
63  N.  C.  200,  A  contract  of  sale  made  to  enable  a  party  to  lea\e  the  state  and 
thus  escape  from  justice.  Dodson  v.  Swan,  2  W.  Va.  511.  Acontract  against  the 
policy  of  the  law  concerning  land.  Smith  V.  Johnson,  37  Ala.  633.  Sometimes 
where  the  parties  are  not  iti  pari  delicto  the  defendant  is  not  jiermitted  to  set  up 
the  illegality  as  a  defense.  Pingree  v.  Coffin,  12  Gi-ay,  288;  Erec^iove  v  Cole,  41 
Barb.  318  ;  Sandfoss  v.  Jones,  35  Cal.  481.  [See  Sparks  v.  Sparks.  94  Neb.  527. 
Further  examples  of  illegal  contracts;  Pratt  v.  Stonington  Bank,  46  Conn.  476 
(agreement  by  a  sa\ang3  bank  to  loan  more  than  allowed  by  statute);  Soathanv. 
Stillwell,  73  Mo.  492  (agreement  in  violation  of  the  bankruptcy  law) ;  Ccu-des 
V.  Miller,  39  Mich.  581  (agreement  to  rebuild,  madeillegal  liy  subsequisnt  statute); 
Olin  V'  Bates,  98  111.  53  (contract  to  assist  in  obtaining  a  tliploina  in  a  medical 
school);  Mine  Hill,  etc  ,  R.  R.  Co.  v.  Lippencott,  86  Pa.  St.  468.  479  (contract 
whose  performance  would  prejudice  the  public  by  interfering  with  the  trans- 
portation of  ]iassengers) ;  Chicago,  B.  &  Q.  R.  R.  Co.  v.  Reno,  113  111.  39  (same) ; 
Foil's  App(ial,  91  Pa.  St.  434  ((;ontra<;t  ])rejudicial  to  the  rights  of  stockholders 
and  depositors  in  a  national  bank,  by  giving  control  of  its  stock  to  one  or  more 
persons  for  the  purpose  (^f  assni-ing  an  office) ;  cf.  Noel  i^.  Drake,  28  Kan.  265.] 

373 


THE    CONTRACT  MUST  BE  FREE  FROM  ILLEGALITY.  361 

Sec,  281.  Every  case  of  illegality  mast,  of  course,  be  determined  by 
positive  law,  for  the  very  term  itself  implies  not  merely  the  absence, 
but  the  actual  violation  of  a  legal  rule.  In  certain  instances  the  ille- 
gality is  created  by  statute ;  in  all  other  instances,  by  the  common 
law  independently  of  statute.  For  purposes  of  classification  merely, 
and  by  way  of  assigning  a  reason  or  motive  for  the  legal  rule,  certain 
kinds  of  contracts  are  pronounced  illegal  by  the  common  law  because 
they  conflict  with  public  policy ;  certain  other  kinds,  because  they  are 
contrary  to  good  morals.  It  is  not  possible,  however,  to  draw  the 
dividing  lines  with  any  clearness  between  these  classes.  Agreements 
which  are  contrary  to  good  morals  are  also  opposed  to  public  policy  ; 
and  in  many  instances,  contracts  which  were  illegal  at  the  common, 
law,  have  also  been  embraced  within  the  prohibitions  of  special 
statutes.  Without  attempting  any  exhaustive  description,  I  shall 
state  some  of  the  most  important  and  common  species  of  illegal  con- 
tracts, following  in  a  general  manner  the  classification  already  men- 
tioned— namely :  1,  those  prohibited  by  statute ;  2,  those  which 
conflict  with  public  policy  j  3,  those  which  are  contrary  to  good  morals. 

Contracts  illegal  by  statute. 

yEC.  282.  1.  Among  the  contracts  made  illegal  by  statute  are  those 
infected  with  usury  ;(1)  gaming  contracts  ;(2)  wager  contracts  ;(3) 
contracts  which  are  champertous,  or  tend  to  promote  champerty  and 
maintenance ;  (4)  contracts  which  are  given  in  consideration  of  com- 
pounding with  felonies,  or  suppressing  public  prosecutions  of  crimi- 
nals. (5)  Several  of  these  species  are,  to  a  certain  extent,  illegal  by 
common-law  doctrines,  but  statutes  have  either  extended  or  defined 
the  illegality.  Agreements  which  hinder,  delay  and  defraud 
creditors,  are  not  included  in  this  list,  because  they  are  not  illegal  and 
void,  but  merely  voidable  as  against  the  defrauded  creditors,  while 
perfectly  valid  between  the  parties  themselves. 

(1)  Story  Eq.  Jur.  §  301 ;  Fanning  v.  Dunham,  5  Johns.  Ch.  122. 

(2)  These  were  also  illegal  at  the  common  law.  Robinson  v.  Bland,  2  Burr. 
1077  ;  Rawden  v.  Shadwell,  Ambler's,  269  ;  Woodroffe  v.  Farnham,  2  Vern.  291 ; 
Skipwith  V.  Strother,  3  Rand.  214  ;  Woodson  v.  Barrett,  2  Hen.  &  Mun.  80 ; 
Dade  w  Madison,  5  Leigh,  401. 

(3)  Some  wager  contracts  were  illegal  at  the  common  law,  when  they  were 
opposed  to  public  policy — e.  g.,  a  bet  on  the  life  of  a  cei'tain  person  ;  but  in 
genei-al  they  are  not  illegal.  DeCostar  v.  Jones,  Coop.  729  ;  Gilbert  v.  Sykes,  16 
East,  150. 

(4)  Powler  r>.  Knowler,  2  Atk.  224 ;  DeHoghton  v.  Money,  L.  R.  2  Ch.  164  ;  1 
Eq.  154.  In  many  of  the  American  states  statutes  ha?\-e  reduced  the  number  of 
champertous  contracts  within  very  narrow  limits. 

(5)  Johnson  v.  Ogilby,  3  P.  Wms.  276 — such  agreements  are  undoubtedly  ille- 
gal at  the  common  law,  but  they  have  been  condemned  also  by  statute.  See 
Nickelson  -«.  Wilson,  60  N.  Y.  362. 

374 


362  SPECIFIC  PERFORMAXCR    OF    CONTRACTS. 

Contracts  opposed  to  public  policy. 

8ec.  28:3.  2  Among  those  illegal  by  common-law  doctrines,  becau.«<^ 
opposed,  to  public  policy,  are:  Marriage  brokerage  contracts,  by  which 
one  agrees  to  negotiate  a  marriage  for  the  other,  for  some  considera- 
tion ;(1)  contracts  in  restraint  of  marriage, (2)  although  conditions  in 
partial  and  reasonable  restraint  of  marriage  annexed  to  bequests, 
gifts,  and  the  like,  are  sometimes  upheld  ;(".>)  contracts  in  general 
restraint  of  trade  ; (4)  agi-eements  among  persons  interested  to  prevent 
competition  and  restrain  bidding  at  public  auctions,  and  especially 
combinations  of  such  a  kind  among  persons  offering  proposals  for 
public  work,  when  such  work  is  to  be  awarded  by  public  officers  to 
the  lowest  bidder — agreements  among  persons  to  prevent  competi- 
tion, and  keep  up  the  price,  are  clearly  against  public  policy  and 
illegal. (5)  There  is  a  large  class  of  agreements  which  tend  to  interfere 
with  the  free  and  orderly  conduct  of  governmental  and  public  affairs 
in  every  department,  whether  legislative,  executive  or  judicial,  which 
are  in  the  highest  degree  contrary  to  public  policy — of  which  the  fol- 
lowing are  examples :  Contracts  between  third  persons,  or  between 
third  persons  and  members  of  the  legislature,  the  object  of  which  is 
to  promote  or  hinder  legislation,  w^hether  public  or  private; (6)  con- 
tracts for  the  buying,  selling  or  procuring  public  offices,  or  for  pro- 
moting in  any  manner  the  appointment  of  a  party  to  such  an  office  ;(7) 
contracts  tending  to  effect  or  influence  public  elections  to  office  ;(8) 

(1)  These  sort  of  contracts  appear  to  have  at  one  time  been  quite  common. 
Drury  v.  Hook,  1  Vern.  412 ;  Key  v.  Bradshaw,  2  Vern.  102 ;  Duke  of  Hamilton  v. 
Mohun,  2  Vern.  (552 ;  Keat  v.  Allen,  2  Vern.  588 ;  Toohe  V.  Atkins,  1  Vern.  451 ; 
Gale  V.  Lindo,  1  Vern.  475  ;  Baker  v.  White,  2  Vern.  215  ;  Kemp  t\  Coleman,  1 
Salk.  156 ;  Boynton  v.  Hubbard,  7  Mass.  112 ;  Cole  v.  Gibson,  1  Ves.  503 ;  Smith 
V.  Bruning,  2  Vern.  392 ;  Williamson  v.  Gihon,  2  Sch.  &  Lef.  355. 

(2)  Woodhouse  v.  Shei^ley,  2  Atk.  535  ;  Key  v.  Bradshaw,  2  Vern.  102  ;  Baker 
V.  White,  2  Vern.  215 ;  Lowe  v.  Peers;  4  Burr.  2225  ;  Hartley  v.  Rice,  10  East,  22 ; 
England  v.  Downs,  2  Beav.  522 ;  Conrad  v.  Williams,  6  Hill,  445. 

(3)  Story  Eq.  Jur.  §§  280,  285  ;  Stackpole  v.  Beaumont,  3  Ves.  9tJ ;  Scott  v. 
Tyler,  2  Dick.  719. 

(4)  Mitchell  v.  Reynolds,  1  P.  Wms.  181 ;  Pierce  v.  Fuller,  8  Mass.  223;  but  in 
partialrestraint,  if  reasonable  in  extent,  are  valid.     Webb -jj.  Noah,  1  Edw.  Ch.  (i04. 

(5)  Jones  v.  Caswell,  3  Johns.  Cas.  29  ;  Doolin  v.  Ward,  6  Johns.  194;  Wilbur 
V.  Howe,  8  Johns.  444  ;  Piatt  v.  Oliver,  2  McLean,  2(57. 

(6)  Story  Eq.  Jur.  §  293,  and  cases  cited  in  n.  3.  A  contract  for  the  employ- 
ment of  an  attorney  to  ai-gue  in  an  open  and  public  manner  before  the  whole 
legislature  and  before  a  committee  thereof,  is  valid  ;  but  a  contract  to  employ  an 
agent  to  work  with  the  members  privately  by  means  of  his  own  jjersonal  influence, 
or  in  any  other  manner,  is  illegal.     See  Nickelson  v.  Wilson,  60  N.  Y.  302. 

(7)  Chesterfield  v.  Janssen,  2  Ves.  124 ;  Hartwell  v.  Hartwell,  4  Ves.  811 ;  Boynton 
V.  Hubbard,  7  Mass.  119  ;  Becker  v.  Ten  Eyck,  6  Paige,  68. 

(8)  Walker  v.  Duke  of  Portland,  3  Ves.  444;  Stevens  v.  Bagwell,  15  Ves.  139. 

375 


THE    COXTRACT  MUST  HE   FREE   FROM  ILLEGALITY.  363 

agreements  to  remuTievate  i)ublic  officers  for  acts  done  contrary  to  their 
official  duty,  or  to  remunerate  them  in  aihlition  to  their  lawful  fees  or 
salaries  for  acts  which  they  are  bound  to  do  by  virtue  of  their  office  ;(1) 
assignments  of  the  fees  and  profits  of  official  positions  requiring  per- 
sonal attention  and  supervision; (2)  agreements  in  consideration  of  the 
suppression  of  criminal  prosecutions  or  the  compounding  of  felonies. (3) 

Contracts  opposed  to  good  morals. 

•Sec.  284.  3.  Among  tlie  contracts  which  are  illegal  at  the  common 
law,  because  opposed  to  good  morals,  contra  honos  mores,  the  most  im- 
portant are  those  in  which  either  the  consideration  is  some  future 
flagrantly  immoral  act,  or  the  promise  is  to  do  such  an  act ;  as,  for 
example,  illicit  sexual  intercourse; (4)  contracts  where  the  considera- 
tion, either  past  or  future,  or  the  promise  of  the  thing  to  be  done,  is 
the  commission  of  some  crime,  or  the  express  violation  of  some  general 
law,  or  the  omission  of  some  public  duty. (5)  Certain  species  of  agree- 
ments, already  mentioned,  might  be  placed  in  this  class,  since  they 
are  as  much  opposed  to  good  morals  as  to  public  policy,  namely, 
gaming  and  wager  contracts,  and  those  involving  the  compounding  of 
felnoies  or  the  suppression  of  prosecutions. 

Contracts  in  violation  of  fiduciary  duty. 

Sec.  285.  There  are  other  species  of  agreements  which,  though  not 
strictly  illegal  and  void,  are  quasi  illegal  and  voidable,  w^hich  a  court 
of  equity  either  refuses  to  enforce  altogether,  or  else  enforces  only 
under  special  circumstances  of  their  good  faith,  fairness  and  equity 
being  established  in  the  most  conclusive  manner.  The  objection  to 
them  is  not  that  they  are  tainted  with  fraud,  still  less  that  they  are 
founded  upon  mistake — although  they  are  sometimes  loosely  spoken 
of  as  frauduletit ; — it  is  rather  that,  judging  from  the  common  expe- 
rience of  mankind,  they  are  opposed  to  a  sound,  public  policy  In  most 
of  these  gttasi  illegal  contracts,  the  essence  of  the  difficulty,  the  ele- 
ment which  renders  them  obnoxious  to  criticism,  and  exposes  them  to 
judicial  condemnation,  consists  in  the  existence  of  such  relations 
between  the  two  contracting  parties  that  the  beneficial  interests  of  one 
party  derived  from  the  agreement  itself,  are  inherently  and  necessarily 
opposed  to  and  clashing  with  his  duties  towards  the  other,  growing 
out  of  those  relations  ;  so  that,  in  making  a  contract,  an  opportunity 

(1)  Cooth  V.  Jackson,  C  Ves.  12. 

(2)  Wethwold  ?>.  Walbank,  2  Ves.  238  ;  if  an  officer's  compensation  is  a  stated 
salary,  and  the  duties  can  be  performed  by  a  deputy,  such  salary  may,  perhaps, 
be  assigTied.     [Quf]     [See,  also.  Field  v.  Chipley,  79  Ky.  260.] 

(3)  Johnson  v.  Ogilby,  3  P.  Wms.  276.  Such  agreements  are  valid  in  case  of 
some  inferior  offenses. 

(4)  Story  Eq.  Jur.  §  296. 

(5)  Story  Ec^.  Jur.  §  296,  and  cases  cited  in  note. 

376 


304  SPECIFIC  pkrf()KMAa\'ce  of  CO.XTRACrS. 

is  inevitably  given,  and  a  temptation  almost  irresistibly  arises  to 
overreach  and  obtain  an  advantage  over  that  other  jjarty.  As  the 
opportunity  is  more  convenient,  and  the  temptation  more  powerful,  so 
is  the  inclination  and  tendency  of  the  courts  more  firm  and  absolute 
to  withhold  the  remedy  of  a  specific  performance  from  such  contracts. 
Of  this  kind  are  contracts  in  whicli  the  one  obtaining  tlie  benefit 
stands  in  a  position  of  trust  and  confidence' towards  the  otlier,  whether 
the  trust  be  express  or  results  from  some  existing'  relation,  as  those  by 
a  parent  with  a  child,  by  a  guardian  with  a  ward,  by  an  attorney 
with  his  client,  by  a  trustee  with  his  beneficiary.  Such  agreements 
are  always  enforced  with  the  most  extreme  caution,  and  with  the 
greatest  reluctance  ;{1)  and  if  the  confidential  relation  is  strictly  a 
legal  one,  and  is  incompatible  with  any  such  dealings  betw^een  the 
parties,  their  performance  will  be  altogether  refused;  as,  for  example, 
an  agreement  with  a  corporation  made  by  a  director  thereof  for  his 
own  benefit,  concerning  matters  which  are  within  the  corporate 
powers  and  under  the  control  of  the  directors  as  managing  agents  of 
the  company.  A  contract  of  this  kind  will  not  be  enforced. (2)  In 
the  same  general  class  are  contracts,  already  mentioned  in  a'preceding 
section,  concerning  their  expected  inheritance,  reversions,  etc.,  made 
with  heirs  and  reversioners,  during  the  life  of  their  ancestors,  or  life- 
tenants.  Although  such  agreements  are  not  strictly  illegal,  yet  they 
are  regarded  with  suspicion,  and  are  enforced  only  after  the  most  con- 
clusive proof  of  good  faith,  fairness,  and  right  dealing.  The  burden 
of  proof  to  make  out  these  qualities  rests  upon  the  party  claiming  the 
benefit  of  the  bargain.(3) 

Defense  of  illegality  rests  upon  reasons  of  public  policy. 

Sec.  286.  As  has  already  been  stated,  courts  set  aside  or  refuse  to 
enforce  illegal  contracts,  in  general,  not  from  any  regard  for  the 
objecting  party,  nor  from  a  desire  to  protect  //is  individual  interests, 
but  from  reasons  of  public  policy.     Where  two  persons  with  equal 

(1)  See  Story  Eq.  Juv.  §§  307-327  ;  Griffiths  v.  Robins,  3  Mndd.  101. 

(2)  Flanag-an  v.  Great  Western  Ry.  Co.,  L.  R.  7  Eq.  11(5,  pei-  Gh.k.\k»,  V.  C.  The 
defendant,  a  i-ailway  company,  owned  a  refreshment  room  at  a  station  ;  the  phiintiff, 
a  director  of  the  company,  contracted  for  a  lease  of  said  refreshment  room,  for  the 
benefit  of  a  firm  of  which  he  was  a  member.  Held,  not  in  any  case  enforceable. 
Here  the  corporation  had  power  to  lease  the  room,  and  the  matter  of  leasing'  it 
came  imder  the  g:eneral  conti-ol  of  the  directors  as  a  body.  PlaintifTs  duties  as 
a  director  to  lease  it  for  the  hig'hest  possible  rent,  etc.,  necessarily  clashed  with 
his  interests  as  lessee  to  get  the  property  for  as  small  a  rent,  and  at  as  <r(i(id  tfi-ms 
for  himself  as  possible. 

(;5)  Story  Eq.  Jur.  §  336.  note  ;  Twisleton  v.  Griffith,  1  P.  Wms.  310;  Cole  v. 
Gibbons,  3  P.  Wms.  293  ;  Bowes  v.  Heaps,  3  V.  &  B.  117  ;  "VValmesley  v.  Booth,  2 
Atk.  27  ;  and  see  ante,  §  191. 

377 


THE    CONTRACT  MUST  BE   FREE   FROM   ILLEGALITY.  :^65 

knowledge  and  equally  participating  in  the  fault,  liave  entered  into 
an  illegal  agreement,  and  one  of  them  has  obtained  l>y  the  other  s 
voluntary  act  all  the  benefit  of  it  for  himself,  his  refusal  to  perform 
on  his  own  part  is,  generally  considered  in  itself  alone,  unjust  and 
inequitable ;  but  the  law  sustains  him  in  this  position,  because  it 
takes  into  account  the  interests  of  society  and  of  the  state,  which 
demand  the  complete  suppression  of  such  agreements.  The  objection 
which  prevails  and  avoids  the  illegal  contract  comes  not  from  the 
individual  litigant,  but  from  the  public  at  large  who  speak  through 
the  courts. (1)  Whenever,  therefore,  in  a  suit  for  specific  performance, 
the  illegality,  not  having  been  alleged  in  the  pleadings,  is  disclosed 
for  the  first  time  by  the  evidence,  the  court  will  on  its  own  motion 
pursue  the  investigation,  and,  if  the  fact  is  established,  refuse  to  enforce 
the  agreement. (2)  There  is  some  conflict  in  the  judicial  opinions  con- 
cerning the  certainty  with  which  the  illegality  must  be  established. 
According  to  one  theory,  the  agreement  must  appear  with  a  reasona- 
ble degree  of  certainty  to  be  legal;  according  to  the  other,  the  ille-"* 
gality  must  be  shown.  In  other  words,  does  the  burden  lie  upon  the 
party  affirming  the  contract  to  be  legal,  or  on  the  one  alleging  it  to 
be  illegal  ?  It  would  seem  that,  upon  principle,  the  latter  view  is 
the  correct  one. (3)  i 

Hovr  far  defense  of  illegality  extends 

Sec.  287.  From  the  nature  of  the  objection,  as  not  resting  upon  any 
motives  of  concern  for  the  individual  interests  of  the  party  making  it, 

(1)  See  Holman  v.  Johnson,  Cowp.  343,  per  Lord  Mansfield  :  ♦'  It  is  not  for 
the  defendant's  sake  that  the  objection  is  ever  allowed ;  but  it  is  founded  in  gen- 
eral principles  of  policy,  which  the  defendant  has  the  advantage  of,  contraiy  to 
the  real  justice  between  him  and  the  plaintiff— by  accident,  if  I  may  so  say." 
If  an  award  dii-ects  the  doing  of  an  illegal  act,  it  will  not  be  enforced,  while  if  it 
directs  merely  an  unreaso7iable  one,  it  wiil  be  enforced,  because  the  parties  have 
selected  their  own  judge  and  must  abide  by  his  decision,  unless  it  requires  a 
direct  violation  of  the  law.     Wood  v.  Griffith,  1  Sw.  43. 

(2)  Parken  v.  Whitby.  T.  &  R.  306  ;  Evans  v.  Richai'dson,  3  Meriv.  469. 

(3)  In  Johnson  (i.  Shrewsbury,  etc.,  Ry.  Co.,  3  DeG.  M.  &  G.  914,  Knight-Bruce, 
L.  J.,  stated  the  rule  that  an  agreement  would  not  be  specdfically  enforced  unless 
the  coui't  was  "satisfied  that  there  was  not  a  reasonal)le  ground  for  contending 
that  it  is  illegal  or  against  the  policy  of  the  law."  But  in  Auliin  v.  Holt,  2  K.  &  J. 
66,  70,  Page  Wood,  V.  C.  (afterwards  Ld.  Ch.  Hathbrley),  said  :  "The  agrpemeut 
must  be  legal  or  illegal,  ami  it  is  not  within  the  discretion  of  the  court  to  refuse 
specific  performance  because  an  agreement  savors  of  illegality  ;  it  must  be  shown 
to  be  illegal."  This  theory  is  certainly  in  accordance  with  the  general  view 
stated  in  the  text,  that  the  defense  of  illegality  is  often  an  unrighteous  one,  which 
the  courts  do  not  favor,  and  never  sustain  out  of  regard  to  the  jiai'ty  urging  it. 
If  this  be  true,  the  burden  most  clearly  ought  to  rest  unon  the  one  who  alleges 
the  illegality.  [If  part  of  the  considei-ation  iov  an  entire  contract  is  illegal,  with 
no  provision  for  a  separate  iii-ice  for  the  illegal  ixirtiim,  .■^pt-cilic  j)erfbi-niance  will 
not  be  enforced.     Gei'lac  v.  Skinner,  34  Kan.  8(>J. 

378 


J 


366  SPECIFIC  rERFORMAXCK   OF  COXTRACTS. 

it  follows  that  whore  such  party  has  already  enjoyed  the  benefits  of 
the  contract,  the  defense  of  its  illegality,  set  up  by  him,  is  not  reg'"arded 
with  much  favor  by  the  courts. (1)  Its  operation  is  confined  witliin  the 
exact  limits  prescribed  by  tlie  law,  and  is  not  extended  by  a  libeial 
construction,  or  by  implication,  so  as  to  reach  beyond  the  very  terms 
and  scope  of  the  objectionable  agreement  itself.  It  results  from  tliis 
restrictive  mode  of  dealing  with  illegal  contracts,  that  other  lelations 
may  be  based  upon  or  follow  from  them — consequential  rights  and 
obligations  may  arise  from  them — which  will  be  recognized  and 
enforced  notwithstanding  the  illegal  origin  from  which  thesi;  relations, 
rights,  and  duties  are  derived,  or  with  which  they  arc  connect(Ml.  In 
order,  however,  that  such  legal  relations  may  arise  inci(h>ntally  from 
an  illegal  contract,  the  illegality  itself  must  not  be  of  a  na  ure  intrin- 
sically immoral  or  evil — a  vialum  in  se  ;  it  must  be  an  illegality  result- 
ing from  motives  of  expediency  or  policy.  The  following  are  some 
illustrations  of  this  principle.  A  contract  may  be  illegal  and,  there- 
fore, incapable  of  enforcement,  but  a  separate  trust,  lawful  in  itself, 
may  be  created  ancillary  to  that  agreement,  referring  to  it,  and  for 
the  very  purpose  of  carrying  it  into  effect.  Such  trust  may  be 
executed  by  a  decree  of  the  court,  although  its  execution  necessarily 
involves  and  includes  a  specific  performance  of  the  antecedent  con- 
tract.(2)  Again,  an  illegal  contract  may  be  voluntarily  carried  into 
effect  by  an  act  which,  in  its  own  nature,  is  perfectly  legal,  and  this 
act,  though  resulting  from  an  unlaw-ful  source,  may  be  a  valid  consid- 
eration of  a  legal  and  binding  agreement ;  as,  for  example,  altliough 
an  agreement  to  transfer  stocks  may  be  illegal,  under  the  statutes  in 
relation  to  stock-jobbing,  yet  the  actual  transfer  of  the  stocks  in  pur- 
suance of  it  is  not  intrinsically  an  unlawful  act,  and  may  be  the 
consideration  of  another  lawfid  contract. (3)     And  again,  if  a  trust 

(1)  Shrewsbury,  etc.,  R'y  Co.  v.  London  &  N.  W.  R'y  Co.,  16  Beav.  441. 

(2)  This  proposition,  of  course,  assumes  that  the  power  of  creating  express  trusts 
has  not  been  restricted  by  statute.  In  New  York  and  many  other  states,  where 
expi'fss  trusts  have  been  limited  to  certain  specified  objects,  it  may  be  that  such  a 
case  could  not  arise,  simply  because  the  appropriate  trust  to  carry  the  contract 
into  effect  would  not  be  possible.  Powell  v.  Knowler,  2  Atk.  224,  is  an  illustra- 
tion of  the  text.  A.  and  B.  had  entered  into  an  agreement  for  the  division  an<l 
conveyance  to  each  other  of  parts  of  cei'tain  land  which  they  expected  to  recover. 
This  contract  was  champertous  and  illegal,  and  could  not,  as  a  contract,  be 
enforced.  But  one  of  the  parties,  who  had  agi-eed  to  convey  a  portion  of  the  land 
to  the  other,  by  a  clause  in  his  will  directed  the  agi-eement  to  be  performed  and 
created  a  trust  for  that  purpose.  This  ti-nst  was  enforced  against  the  trustee, 
although  the  original  contract  was  also  thereby  specifically  performed. 

(3)  McCallan  v.  Mortimer.  9  M.  &  W.  (586. 

379 


THE  PERFORMANCE  MUST  BE  PRACTICABLE.  367 

■should  be  created  whereby  A.  was  illegally  to  pay  money  to  the 
trustee  B.  for  the  benefit  of  C,  the  beneficiary  could  not  compel  A.  to 
make  the  ])ayment ;  but  if  A.  should  voluntarily  pay  over  the  money 
into  the  hands  of  B.,  such  trustee  could  not  set  up  the  illegality  of 
the  trust  as  a  defense  to  a  claim  for  it  made  upon  him  by  the 
beneficiary.  (1) 


Fourth  Group. 


Those  incidents  which  relate  to  or  are  connected  with  the  actual  enforcement 
of  a  decree,  and  which  require  that  a  specific  performance  should  be 
practicable. 

Section  288.  In  considering  the  various  conditions  under  which  a 
contract  must  exist,  or  the  qualities  which  it  must  possess  in  order 
that  the  equitable  remedy  of  specific  performance  may  be  granted, 
■we  are  now  brought  to  the  last  of  the  series — a  specific  perforviance 
must  be  practicable.  The  features  and  incidents  w^hich  have  been 
examined  in  the  foregoing  sections  of  the  present  chapter  belong  to 
the  contract  itself,  to  its  terms,  its  subject-matter,  or  the  conduct  of 
the  parties  which  led  up  to  and  influenced  its  conclusion  ;  and  they 
niLiy  be  roughly  divided  into  two  general  groups — those  which  more 
immediately  affect  the  validity  and  binding  efficacy  of  the  agree- 
ment, and  those  which  concern  its  equitable  nature,  its  moral  char- 
acter, its  relations  to  right  and  justice.  The  attributes  and  features 
which  yet  remain  to  be  examined  primarily  belong,  on  the  other 
hand,  to  the  remedy,  or  to  the  judicial  act  of  decreeing  it,  and  what- 
ever connection  they  may  have  with  the  contract,  is  merely  incidental 
and  partial.  The  practicability  or  impracticability  of  the  remedy 
must  necessarily  depend  upon  three  different  kinds  of  circumstances, 
and  this  three-fold  division  furnishes  a  natural  classification  an'd  order 
which  the  discussion  will  pursue.  1.  TJie  peculiar  nature  of  the  con- 
tract.— Although  the  court  may  ha\-e  all  the  means  of  enforcing  a 
specific  X'erformance,  and  the  defendant  may  be  legally  and  physi- 
cally able  to  perform,  yet  the  contract  may  be  such  that  by  its  very 
terms  the  performance,  when  completed,  would  be  wholly  nugatory. 
This  is  true  of  agreements  which  are  revocable  at  the  pleasure  of 
the  defendant.  The  number  of  cases  embraced  in  this  class  is  com- 
paratively very  smalL  2.  The  incapacity  of  the  defendant. — Although 
the  contract  may  be  legally  valid,  and  its  terms  such  as  are  capable  of 

(1)  Thomson  v.  Thomson,  7  Ves.  470;  Tenant  v.  Elliot,  1  B.  &  P.  3.  See 
TVacy  v.  Talniage,  14  N.  Y.  162,  in  which  the  doctrine,  as  to  the  enforcement  of 
illeo-al  contracts,  is  discussed  in  the  most  exhaustive  manner  by  Selden  and 
CoM«TOCK.  .T.T. 

380 


368  SPhClFlC   rKUFUHMAMK    OF   COMRAVTS. 

performance,  and  although  the  court  may  be  I'ully  c()iiip(>tent  to 
enforce  the  performance  of  such  a  contract,  yet  in  a  particular  instance 
the  defendant  may  be  so  related  to  the  subject-matter  that  a  spiH-ific 
performance  of  his  stipulations  is  absolutely  impossible.  For  example, 
he  may  have  agi'eed  to  convey  a  specified  farm  to  A.,  and  before  exe- 
cuting may  have  conveyed  it  to  B.,  \vho'is  a  bona  fide  purchaser 
without  notice,  and  cannot  be  compelled,  and  will  not  consent,  to 
rescind  and  give  up  his  purchase.  In  such  a  case  a  specific  perform- 
ance for  the  benefit  of  A.  is  manifestly  impossible  through  the  defend- 
ant's incapacity,  and  the  injured  party  must  be  left  to  his  legal  action 
for  damages.  3.  Incapacity  of  the  court. — Finally,  although  the  con- 
tract may  be  valid,  and  in  its  nature  capable  of  being  performed, 
and  the  defendant  competent  to  perform,  the  court  may  be  unable, 
by  its  ordinary  administrative  instruments,  and  with  any  reasonable 
exercise  of  its  judicial  and  e-xecutive  functions,  to  enforce  and  carry 
into  effect  the  decree  which  it  might  render.  Although  the  render- 
ing a  decree  ordering  such  and  such  acts  to  be  done  may  be  easy, 
still,  if  the  court  has  no  means  and  instruments  for  making  its  decis- 
ion effective,  and  compelling  obedience  to  its  mandates,  its  decree 
would  be  nugatory,  and  will  not  be  granted.  I  shall  take  up  these 
three  cases  separately  in  the  order  as  now  stated,  premising  that  in 
all  other  instances  contracts,  if  they  conform  to  the  requirements 
described  in  the  preceding  sections  of  this  chapter,  will  be  specifically 
enforced. 

SECTION    XVI. 

The  nature  of  the  contract :     It  must  be  such  that  its  specific  perform-^ 
ance  would  not  be  nugatory. 

Section  289.  In  all  the  instances  of  this  class,  it  is  assumed  that 
a  specific  execution  of  the  agreement  is  possible;  that  so  far  as 
depends  upon  its  terms,  the  capacity  of  the  defendant,  and  the  power 
of  the  court,  a  decree  could  be  made  and  carried  into  effect  by  which 
the  party  would  do  exactly  what  he  had  promised  to  do ;  but  still, 
this  whole  proceeding  might  be  nugatory,  because,  from  the  stipula- 
tions or  essential  nature  of  the  contract,  the  defendant  may  at  any 
time  before  or  after  the  decree  free  himself  from  the  obligation,  and 
thus  render  the  contract  a  nullity.  This  is  the  case  with  all  agree- 
ments which,  either  froiu  their  essential  character  or  from  special 
stipulations,  are  revocable  at  the  option  or  pleasure  of  the  party  against 
whom  the  remedy  is  sought.  If  the  defendant  can  at  will  terminate 
the  contract,  and  throw  off  every  duty  arising  from  it,  and  thus  make 
a  deree  of  the  court  without  any  efficiency,  it  is  plain  that  specific 

381 


PERFORMANCE  3IUST  NOT  BE  NVOATORT.  369 

performance  would  bo  an  idle  and  tiseless  proceedin^.(l)  The  foliow- 
ing  are  the  important  examples  of  such  revocable  contracts. 

iSec.  290.  It  is  well  settled,  as  a  i^'-eneral  rule,  that  an  agreement 
to  enter  into  a  partnership  which' would  be  literally  performed  by 
executing  the  partnership  articles,  or  to  carry  on  a  partnership 
already  established,  will  not  be  specifically  enforced. (2)  A  court  of 
equity  will  certainly  never  interfere  where  no  period  has  been  fixed 
by  the  agreement  for  the  duration  of  the  firm,  since  either  partner 
may  then  dissolve  at  will,  and  thus  terminate  the  contract  and  make 
the  decree  an  empty  form. (3)  In  some  cases,  liowever,  which  were 
special  and  exceptional,  an  agreement  to  enter  into  a  partnership  has 
been  specifically  enforced  by  compelling  the  execution  of  partnership 
articles;  but  the  mere  fact  that  a  fixed  period  for  the  duration  of  the 
firm  is  stipulated  for,  is  not  of  itself  a  sufficient  ground  for  granting 
the  remedy. (4) 

Sec.  291,  Another  instance  of  the  same  general  class  is  that  of  agree- 
ments to  submit  matters  in  controversy  to  arbitration  which  are 
not  specifically  enforced  because  they  may  be  revoked  at  any  time 
before  the  award  is  completed,  and  the  power  delegated  to  the  arbi- 
trators withdrawn,  although  the  award  itself  after  it  has  been  made 
may  be  performed  by  a  court  of  equity. (5)     On  the  same  principle  a 

(1)  See  Tobey  v.  County  of  Bristol,  3  Stoiy,  800.  [For  example,  the  court  will 
not  specifically  enforce  a  contract  to  assig-n  an  interest  in  letters  patent  for  an 
invention  on  a  bill  tiled  only  a  short  time  before  the  patent  expires ;  Werden  v. 
Graham,  107  111.  109,  179  ;  nor  a  contract  which  stipulates  that  after  the  first  year 
it  shall  cease  upon  pa>^nellt  of  $20,000  and  interest ;  Southern  Express  Co.  r. 
Western  N.  C.  R.  R.  Co.,  99  U.  S.  191.  "Where  the  contract  for  a  lease  provided 
that  the  lessee  might  at  any  time  terminate  the  lease  in  whole  or  in  part,  specific 
performance  at  his  suit  was  refused ;  Rust  v.  Conrad,  47  Mich.  449,  455,  per 
CooLEY,  J.:  "The  refusal  in  such  a  case  does  not  dej^end  of  necessity  upon  any 
illegality,  inequality  or  unfairness,  but  it  is  sufficiently  based  iipon  the  imiiropriety 
of  imposing  on  the  judge  the  labor,  and  on  the  public  the  expense  of  an  investi- 
gation of  disputes  when  the  circumstances  are  such  as  to  preclude  any  judgment 
that  may  be  rendered  f  I  om  being  final."  See  also  Hurl  but  v.  Kantzler,  112  111. 
482 ;  Averett  v.  Lipscoml>e,  76  Va.  404  ;  Miller  v.  Newell,  20  S.  C.  123.  In  this 
last  case  it  was  held  that  if  the  court  cannot  give  relief  by  reason  of  the  nature 
of  the  contract,  fraud  will  not  give  the  court  jurisdiction.] 

(2)  Scott  V.  Rayment,  L.  R.  7  Eq.  112,  per  Giffard,  V.  C.  ;  Buck  v.  Smith,  29 
Mich.  166  ;  Meason  v.  Kaine,  63  Pa.  St.  335  (verbal  contract  to  enter  into  a partner- 
shiji  to  trade  in  lands) ;  [Morris  i'.  Peckham,  51  Conn.  128.] 

(3)  Hercy  v.  Birch,  9  Ves.  357 ;  Sheffield  Gas  Consumers  Co.  v.  Harrison,  17 
Beav.  294 ;  Stocker  v.  Wedderbum,  3  K.  &  J.  293 ;  Syers  v.  Syers,  L.  R.  1  App. 
Cas.  174;  Wadsworth  v  Manning,  4  Md.  59;  Reed  v.  Vidal,  5  Rich.  Eq.  289; 
Buck  V.  Smith,  29  Mich.  166  ;  Meason  v.  Kaine,  63  Pa.  St.  335.  A  specific  per- 
iformance  has  been  refused  where  the  contract  did  not  determine  the  amount  of 
the  capital  nor  the  manner  of  obtaining  it.     Downs  v.  Collins,  6  Hare,  418,  437. 

(4)  Anon.,  2  Ves.  Sen.  629  ;  England  v.  Curling,  8  Beav.  129  ;  Wilson  v.  Camp- 
T>ell,  5  Gilm.  383.  And  see  Crawshay  v.  Maule.  1  Sw.  513 ;  Nesbitt  v.  Meyer,  1 
Sw.  226.  [See  also  Satterthwait  v.  Marshall,  4  Del.  Ch.  337,  §  355,  citing  Buxton  r. 
Lister,  3  Atk.  385 ;  Collyer  on  Partn.,  206  ;  Story  on  Pai-fn.,  189,  note.  The  court 
say  "  under  a  covenant  for  the  execution  of  an  instrument  i-)reparatory  to,  or  in 
^ny  way  connected  with  a  partnership,  by  which  the  legal  position  of  the  parties 
would  be  altered,  the  party  covenanted  with  ought  to  be  placed  by  the  execution 
■of  the  instrument  in  tlie  legal  position  stipulated  for  *  *  *  even  though  the 
partnership,  being  at  will,  may  be  immediately  dissolved,  or  may  not  be  formed." 
In  this  case  the  covenant  was  for  the  assignment  of  a  part  interest  in  a  patent 
right,  wth  the  further  agreement  for  a  partnership  for  the  business  of  selling 
rights  under  the  patent  and  the  manufacture  and  sale  of  the  patented  articles.] 

(5)  Price  v.  Williams,  cited  in  6  Ves.  818  ;  Street  v.  Rigby,  6  Ves.  815  ;  Wilkst). 
Davis,  3  Meriv.  507  ;  Gervais  v.  Edwards,  2  Dr.  &  W.  80  ;  Conner  v.  Drake,  1  Ohio 
St.  166  ;  King  v.  Howard,  27  Mo.  21 ;  Tobey  v.  County  of  Bristol,  3  Story,  800, 
820,  823. 

382 


370  SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

court  of  equity  will  not  specifically  enforce  an  agreement  to  execute  and 
deliver  to  the  plaintitt'  sonie  instrument  in  writing,  if  such  instrument 
when  executed  must  contain  a  stipulation  which,  having  been  already 
broken  by  the  plaintiff,  would  make  him  liable  to  forfeit  at  once  all 
benefit  under  it.  The  ordinary  case  is  that  of  an  agreement  to  give 
a  lease  which  must  contain  a  conditioil  that  has  already  been 
"boken  by  the  intended  lessee,  so  that  as  soon  as  the  lease  was  exe- 
cuted and  delivered  the  defendant  could  re-enter  and  [)ut  an  end  to 
the  letting.(l)  Whenevei-  in  a  suit  for  the  specific  execution  of  such 
an  agreement  to  give  a  lease,  it  is  left  fairly  doubtful  on  the  evidence 
whether  the  condition  has  in  fact  been  broken  by  the  plaintiti" — the 
lessee — the  court,  instead  of  refusing  relief,  will  direct  the  lease  to  be 
executed  and  ante-dated  the  time  of  the  alleged  breach,  and  make  it 
a  condition  that  the  plaintiff',  when  made  a  defendant  in  any  action 
at  law  which  may  be  brought  by  the  lessor  to  try  the  question  of  the 
alleged  breach,  should  in  such  action  admit  the  execution  of  the  lease 
as  of  that  date,  so  that  the  issue  may  be  fairly  presented  upon  the 
breach  of  the  condition  alleged  by  the  lessor.(2)  A  voluntary,  post- 
nuptial agreement  to  make  a  settlement  will  not  be  specifically 
enforced,  however ;  among  other  reasons,  so  long  as  it  is  executory  it 
is  revocable  by  the  party  upon  whom  the  duty  of  jjerformance  would 
rest. (3)  In  England  agreements  to  grant  or  admit  to  certain  oflElcea 
are  revocable,  and  are  therefore  not  enforceable  in  equity.(4) 


SECTION  XVII. 

The  incapacity  of  the  defendant  to  perform. 

Section  292.  In  all  the  instances  of  this  class  it  is  assumed  that 
there  is  no  difficulty  in  the  way  of  a  specific  enforcement,  inherent  in 
the  terms  of  the  contract  considered  generally,  nor  resulting  from  any 
failure  of  the  administrative  functions  residing  in  the  court ;  but  that 
on  account  of  some  personal  condition  or  relation  of  the  defendant,  it 

(1)  Jones  v.  Jonep,  12  Ves.  188,  per  Sir  Wm.  Grant;  Gregory  v.  Wilson,  9  Hare, 
683  ;  Lewis  v.  Bond,  18  Beav.  85  ;  Rankin  v.  Lay,  2  DeG.  F.  &  J.  6.5;  Pain  v.  Coombs, 
1  DeG.  &  J.  34 ;  Lillie  v.  Leg-h,  3  DeG.  &  J.  204. 

(2)  Rankin  v.  Lay,  2  DeG.  F.  &  J.  65,  72  ;  Pain  v.  Coombs,  1  DeG.  &  J.  34  ;  Lil- 
lie V.  Leg-h,  3  DeG  &  .J.  204. 

(3)  Andi-ews  v.  Andrews,  28  Ala.  432. 

(4)  Wheeler  v.  Trotter,  3  Sw.  174,  n.  ;  and  see  Sturge  v.  Midland  Ry.  Co.,  6  W. 
R.  (1857-8)  233. 

383 


INCAPACITY  OF  THE  DEFENDANT  TO  PERFORM.  'dll 

is  impossible  for  hiiu  to  do  what  he  has  undertaken  to  do.  In  other 
"words,  if  tliis  personal  incapacity  of  the  defendant  were  removed,  a 
specific  performance  of  the  agreement  would  be  perfectly  practicable. 
It  is  plain  that  if  the  courts,  under  such  circumstances,  refuse  to  grant 
the  remedy,  their  refusal  is  not  based  upon  any  considerations  of  favor 
towards  the  defendant,  nor  upon  the  justice  of  his  case  ;  but  entirely 
upon  the  inexpediency  and  impropriety  of  courts  rendering  decrees 
which  they  know  must  remain  unexecuted,  since  the  defendants 
cannot  be  compelled  to  obey  them.  The  incapacity  of  the  defendant 
may  be  total  or  partial ;  that  is,  he  may  be  unable  to  perform  any 
portion  of  the  contract,  or  he  may  be  unable  to  perform  a  certain  part 
of  it  only      These  two  conditions  will  be  examined  separately. (1) 

Where  the  defendant's  incapacity  is  total. 

Sec.  293  First  The  general  doctrine  is  well  established,  and  from 
the  very  nature  of  the  case  it  could  not  be  otherwise  that  the  absolute 
inability  of  the  defendant  to  perform  his  undertaking  at  all,  when 
called  upon  by  the  court  to  do  so,  prevents  a  decree  against  him  for  its 
specific  enforcement. (2)  The  remedy,  however,  is  not  necessarily  con- 
fined to  these  agreements  which  maybe  performed  when  concluded,  and 
which  depend  for  their  performance  upon  the  will  and  consent  alone  ot 
the  parties  without  the  intervention  of  third  persons.  It  is  not  enough 
that  the  defendant's  incapacity  exists  at  the  time  of  making  the  con- 
tract ;  it  must  also  exist  at  the  hearing  ;  for  if  a  person  agrees  to 
do  a  certain  act  which  he  is  then  unable  to  do,  but  he  afterwards 
becomes  clothed  with  the  power,  he  will  be  compelled  to  perform — if 
the  contract  is  not  illegal — for  he  will  not  be  allowed  to  say  that  he 
did  not  intend  to  acquire  the  interest,  or  estate,  er  other  means  neces- 
sary for  the  fulfillment  of  his  engagement. (3)  The  mere  fact  that  the 
defendant  does  not  own  or  possess  the  subject-matter,  will  not,  of 
itself,  always  constitute  the  legal  impossibility  intended  by  the  rule ; 

[(1)  The  defendant's  capacity  to  perform  need  not  be  alleg-ed  in  the  bill.  It  is 
sufticient  if  t  dops  not  appear  that  performance  is  impossible.  Borden  v.  Curtis, 
46  N.  J.  Eq   4f;8 

(2)  See  Green  *'  Smith,  1  Atk.  .573,  per  Lord  Hardwicke,  Columbine  w  Chi- 
chester, 2  Phil,  2T  ;  Ellis  -?).  Colman,  4  Jur.  (JN'.  S.)  BfjO  ;  Denton  v.  Stewart,  1  Cox, 
258  ;  Hallett  v  Mnldieton,  1  Russ,  243  ;  [Williams  v.  Mansell,  19  Fla.  5^6  ;  Knott 
V.  Shepherdstown  Manuf  Co.,  30  W.  Va  790  ;  Knoxr.  Spratt,  19  Fhi.  817  ;  Gaines 
V.  Malea,  41  Ark  232  ;  Linn  v.  McLean,  80  Ala.  3(;0 ;  Kelly  v.  Central  Pacific  R. 
R.  Co  ,  74  Cal  557  ]  For  cases  where  a  speciiic  pcj-formance  was  refused  on  the 
g-round  of  the  difiicuity  of  performance,  see  Phillips  V.  fcitauch,  20  Mich.  369; 
Burke  V  Seeley,  46  Mo   334. 

(3)  Came  v  Mitcaell.  15  L.  J.  Ch.  287;  Clayton  v.  Duke  of  Newcastle.  2  Cas. 
in  Ch.  112  •  Browne  v.  "Warner,  14  Ves.  412  ;  Greenaway  v.  Adams,  12  Ves.  401  ; 
Coffm  V.  Cooper,  14  Ves.  205;  Hull  v.  Vaughan,  6  Price,  103;  Hollis  v.  Cai-r, 
Freem.  5.  [See  Thompson  v.  Ilawley,  16  Ot-eg-.  251  ,  Hafiey  ?).  Lynch,  (N.  Y.)  38 
N,  E.  Rep.  298  (Oct  9,  1894  )]  Even  when  an  application  to  the  legislature  is 
necessary  to  render  the  contract  enforceable,  this  rule  is  sometimes  acted  upon. 
See  Great  Western  R'y  Co  v  Birmingham,  etc  ,  R'y  Co  .  2  Phil  597 ;  Hawkes  v. 
Ea'stern  Counties  R'y  Co.,  1  De  Gr  M.  &  G.  756,  perLoT-d  St  Leonards  ;  Devenish 
V.  Brown,  16  L.  J.  Ch.  23 ;  Frederick  v.  Coxwell,  3  Y  &  J.  514 

384 


H7'2  SFJyfF/C    /'/■:/.' FOh\UA\<'K    OF   CONTRACT. 

ill  certain  coutnicts  lie  i.s  boiiutl  to  purchase  the  siibicct-nialter  by 
means  of  which  he  may  carry  out  his  uiulertakiiiiC,  which  will,  ihere- 
fore,  under  such  circuiustauces,  be  enforced. (1)  Such  cases  are  neces- 
sarily conlined  to  contracts  whereby  the  defendant  has  undertaken^  to 
me  the  subject-matter  in  a  certain  manner  —  as,  for  exam[ile,  to  ^ive 
security  in  a  certain  amount  upon  land;  they  cannot  be  extended  to 
contracts  whereby  tlie  defendant  has  luidertakeu  to  sell  and  convey  a 
certain  specific  thint,^  which  he  does  not  own,  and  which  he  cannot  be 
compelled  to  acquire  by  ilny  legal  means.  Where  the  incapacity  is 
legal  and  absolute,  there  can  be  no  decree ;  and  this  would  be  the 
case  if  the  defendant  had  contracted  to  sell  and  convey,  cr  lease,  some 
specific  thing  which  he  did  not  own. (2) 

iSec.  294.  An  incapacity  which  did  not  exist  whtMi  lln'  couiract  was 
made,  may  subsequently  arise  from  the  defendant's  own  act  or 
default,  even  when  such  act  or  default  was  iutcniional  ;  as,  where  a 
vendor  having  contracted  ta  sell  his  hind  to  A.,  should  put  it  out  of  his 
power  to  fulfill  by  a  subsequent  conveyance  of  the  land  to  B.,  a  bona 
fide  purehaser,  without  notice  and  for  a  valuable  consideration. (:>)  If 
the  defendant  has  thus,  by  his  own  act,  incapacitated  himself  from  per- 
formance, the  court  of  equity  may,  instead  of  dismissing  the  plaintiff's 
suit,  award  him  the  legal  remedy  of  damages. (1)  On  the  other  hand, 
the  impossibility  of  performance  may  exist  from  the  beginning,  as 
where  the  defendant  had  no  title  to  interest  in  or  authority  over  the 

(1)  Wiilkoi-  V.  Barnes,  3  Mad.  :2 17,  wlun-e  defendant  had  agreed  to  g-ive  certain 
real  estate  secui-ity,  and  clauned  that  he  did  not  own  sufficient  lancf,  an(f  it  was 
held  that  he  must  i)ui-clia-^(;  faud  of  a  sufficient  value.  [See,  also,  Welborn  v. 
Sechrist,  88  N.  C.  287  ;  Ivnox  v.  Spratt,  19  Fla.  817. 

(2)  [See,  for  example,  Gaines  v   Molen,  41  Ark.  232.] 

(3)  Denton  v.  Stewart,  1  Cox,  2.")S  ;  Greenaway  v.  Adams,  12  Ves.  3v).o,  400  ; 
Ferguson  v.  Wilson.  L.  R.  2  Ch.  77  ;  Helling  v.  Lumley,  3  l)e  G.  &  J.  41)3,  498 ; 
Gupton  V.  Gupton,  47  Mo.  37  :  Smith  -w.  Kelly,  56  Me.  (U  ;  [Wollensak  v.  fJi-iggs, 
119  111.  453.]  It  was  held  in  Warren  v.  Richmond,  53  111.  52,  and  Little  v.  Thurs- 
ton, 58  Me.  86,  that  a  sale  or  conveyance  of  the  land  hy  the  vendor  to  a  third  per- 
son, operates  as  a  rescission  of  a  prior  contract  of  sale  ;  but  this,  of  course,  only 
means  that  the  prior  vendee  is  thereby  authorized  to  treat  it  as  rescinded.  When- 
ever the  vendor,  after  having  agreed  to  sell  the  land  to  A.,  enters  into  a  second 
agreement  to  sell  it  to  B.,  or  conveys  it  to  B.,  under  such  circumstances  tliat  the 
latter  is  not  a  bona  fide  purchaser  without  notice  of  A.'s  rights,  A.  can  enforce  a 
specific  performance  against  B.  This  doctrine  is  discussed  at  length  in  a  subse- 
quent section.  See  Bird  v.  Hall,  30  Mich.  374;  Cole  v.  Cole,  41  Md.  301  ;  Snow- 
man V.  Harford,  57  Me.  397 ;  Bryant  v.  Booze,  55  Goo.  438  ;  Fulic^rton  i\  McCurdy, 
4  Lans.  132;  Haughwout  v  Murphy,  7  C.  K.  Green,  531;  6  ib.  118;  Gregg  V. 
Hamilton,  12  Kans.  333;  Johnson  t).  Bowden,  37  Tex.  621  ;  Youell  v.  Allen,  18 
Mich.  108  ;  [Moore  v.  Crawford,  130  U  S.  122  ;  Klauber  v.  Car  Co.,  95  Cal.  353, 
358.  The  conveyance  hy  a  raih-oad  company  of  a  portion  of  its  pi-operty  to  par- 
ties with  whom  it  had  c()ntraeted  to  convey  such  portion  upon  bi-each  of  a  condi- 
tion is  not  excused  by  the  bringing  of  a  suit  l)y  a  moi-tgagce  to  foreclose  a  mort- 
gage upon  the  property,  and  the  ajipointment  of  a  receiver  to  take  possession 
thereof.  Anderson  ?'.  Kittle,  37  Minn.  124  (where  A.  contracts  with  B.  for  the 
purchase  of  B.'s  land,  and  l)efore  conveyance  to  him  A.  contracts  to  sell  to  C,  and 
then  refuses  to  complete  liis  contract  with  B.,  the  contracts  ai-e  independent  and 
C.  cannot  maintain  a  bill  against  A.  an.l  B.  to  com^iel  specific  iierformance  of  the 
first  conti-ac-t,  so  that  B.'s  title  might  be  conveyed  to  C.)  ] 

(4)  Woodcock  V.  Bennett,  1  Cow.  711  ;  Grecinaway  v.  Adams,  14  Ves.  395,  400. 
See  the  subject  discussed  at  large,  ihint,  §§  468-470.  But  such  suit  will  no  be 
entertained  in  equity  for  the  sole  pur]iose  of  giving  damages,  when  the  plaintitf 
knows  that  a  performance  is  impossible.     Gupton  v.  Gupton,  47  Mo.  37. 

385 


INCAPACITY   OF   THE   DEFENUAST   TO   PERFORM.  373 

particular  land,  chattels,  or  other  thing  to  which  his  agreement 
relates,  and  no  legal  means  of  acquiring  the  title  or  authority.  Per- 
formance in  such  a  case  will  not  be  decreed,  because  the  defendant 
cannot  be  compelled  to  purchase  the  specific  thing. (1). 

Performance  depending  upon  the  consent  of  a  tliird  person. 

Sec.  295.  Where  a  defendant  enters  into  a  contract,  the  execution 
of  which  depends  upon  the  voluntary  consent  of  a  third  person,  and 
such  consent  is  refused,  as  there  are  no  legal  means  of  compelling  it  to 
be  given,  the  performance  becomes  an  impossibility,  and  will  not  be 
decreed. (2)  The  mere  fact  that  such  consent  is  necessary,  does  not,  of 
course,  constitute  any  defense,  for  it  may  be  given.  In  conformity 
with  this  rule,  it  is  settled  that  if  a  husband  alone,  or  husband  and 
wife  together,  agree  to  convey  the  estate  of  the  wife,  and  she  after- 
ward refuses  to  complete,  a  court  of  equity  will  not  specifically  enforce 
the  contract.  (3)     If,  however,  there  has  been  any  misleading,  or  mis- 

(1)  Columbine  v.  Chichester,  2  Phil.  27  ;  Ellis  v.  Ct)lman,  4  Jur.  (N.  S.)  3.50; 
HaUett  V.  Middleton,  1  Riiss.  243;  [Swejison  v.  Johnston,  84  N.  C.  449.] 
Failure  of  title  in  the  vendor  is  a  common  defense.  See  Avery  v.  Griffin,  L.  R.  6 
Eq.  606.  Vendor,  a  trustee  to  sell,  was  a  married  woman,  and  her  contract  held 
could  not  be  enforced.  Love  v.  Cobb,  63  N.  C.  324.  A  vendor  cannot  be  decreed 
to  remove  incvimbrances  over  which  he  has  no  control.  Jerome  v.  Scudder,  2 
Roberts,  169.  Where  the  vendor  is  unable  to  complete,  on  account  of  his  title 
proving  to  be  defective,  but  the  vendee  is  in  jiossession  and  insists  upon  a  per- 
formance by  the  vendor,  and  refuses  to  surrender  the  possession  because  he  him- 
self has  not  been  in  fault,  it  seems  the  court  will  not  interfere,  but  will  leave  the 
parties  to  their  remedies  at  law.  Mullins  «.  Hussey,  12  Ju.  (N  S.)  636  ;  and  see 
Davison  v.  Perrine,  7  C.  E.  Green,  87 ;  Foley  v.  Crow,  37  Md.  51 ;  Mclndoe  v. 
Morman,  26  Wis.  588  ;  Marshall  v.  Caldwell,  4  Cal.  611. 

(2)  Grey  v.  Hesketh,  Ambl.  268  ;  Howell  v.  George,  1  Mad.  1  ;  Marsh  v.  Milli- 
gan,  3  Jur.  (N.  S.)  979  ;  Beeston  v.  Stutely,  6  W.  R.  (1857-8)  206 ;  [Hurlbut  v. 
Kantzler,  112  111.  482  (assignment  of  lease  which  contained  a  covenant  not  to 
assign  without  lessor's  consent).]  For  case  of  a  contract  becoming  Imj^ossible  to 
perform  by  the  death  of  a  person  agreed  upon  to  fix  the  amount  to  be  paid,  see 
Firth  V.  Midland  R'y  Co.,  L.  R.  20  Eq.  100. 

(3)  Bryan  v.  Woolley,  1  Bro.  P.  C.  184  ;  Emery  v.  Wase,  8  Ves.  505 ;  Frederick 
V.  Coxwell,  3  Y.  &  J.  514 ;  Howell  v.  George,  1  Mad.  1 ;  Brick  v.  Whelly,  1  Mad. 
7,  n.  ;  Martin  v.  Mitchell,  2  J.  &  W.  413,  425 ;  Castle  v.  Wilkinson,  L.  R.  5  Ch. 
534 ;  Nicholl  v.  Jones,  L.  R.  3  Eq.  696 ;  Clark  v.  Reins,  12  Gratt,  98  ;  Young  v. 
Paul,  2  Stockt.  Ch.  401  ;  Welsh  v.  Bayaud,  6  C.  E.  Green,  186 ;  [Sweepton  v. 
Johnston,  84  N.  C.  449;  Martin  v.  Colby,  42  Hun,  1.]  There  is  a  direct  con- 
flict in  the  rules  adopted  by  the  courts  of  different  states  in  resjiect  to  the  case 
where  a  husband  contracts  to  convey  his  land,  and  his  wife  refuses  to  join  in  the 
conveyance  so  as  to  release  her  inchoate  right  of  dower  and  make  an  unincum- 
bered title.  According  to  the  rule,  as  laid  down  in  some  of  the  states,  the  pur- 
chaser has  no  remedy  in  equity  other  than  to  compel  a  conveyance  by  the  busband 
alone  and  pay  the  full  pi-ice  as  agi-eed  ;  he  cannot  demand  any  compensation  from 
the  vendor  by  way  of  abatement,  unless,  indeed,  the  vendor  has  acted  in  bad  faith, 
and  has  himself  procured  his  wife  to  interpose  the  obstacle  of  her  i-efusal.  See, 
to  this  effect,  Burke's  Appeal,  75  Pa.  St.  141  ;  Reilly  v.  Smith,  25  N  J.  Eq.  158  ; 
Peeler  v.  Levy,  26  N.  J.  Eq.  330  (husband  procuring  his  wife  to  refuse) ;  Riesz's 
Appeal,  73  Pa.  St.  485  ;  Burk  v.  Serril,  80  Pa.  St.  413.     In  Iowa  a  contract  by  a 

386 


874  SPBCJFW    PERFORMANCE    OF  CoyTRACTS. 

representation,  or  coiicoaliuont,  or  other  unfair  conduct  towards  the 
vendee,  tlie  liusband  may  be  compelled  to  convey  his  own  lile  interest, 
with  a  compensation. (1)  These  decisions  are,  of  course,  based  upon 
the  wife's  common-hiw  incapacity  to  make  a  binding  contract,  and 
woukl,  doubtless,  not  be  followed  in  those  American  tstates  where  the 
wife  has  boon  clothed  with  full  power  to  contract  with  reference  to  her 
own  pro[)erty.  , 

Partial  or  substantial  enforcement. 

Sec.  206.  The  defense  of  the  defendant's  incapacity  is,  of  course, 
not  favored,  and  the  court  is  strongly  inclined  to  compel  the  perform- 
ance of  a  contract  according  to  its  substance — if  this  be  i)ossiblc — 
when,  for  any  reason,  the  defendant  is  inca[)acitated  from  a  literal 
fullillment.  This  tendency  is  shown  in  several  classes  of  cases. 
Where  certain  contracts  have  been  made  illegal  by  statute,  the  thing 
to  be  done  being  simply  malum  jjrohibitum,  and  not  malum  in  se,  the 
courts  have  allowed  the  parties  to  accomplish  the  same  object  by 
varying  the  form  of  the  agreement  so  that  it  does  not  tall  witliin  tlie 
exact  terms  of  the  prohibition; (2)  or  wlien  a  performance,  according 

husband  alone  to  convey  a  "  homestead  "  is  void,  and  will  not  be  enforced  even 
again!?t  him.  This  results  from  the  peculiar  provisions  of  the  statutes  resjulating' 
"  homesteads."  Barne.t  v.  Mendenliall,  42  Iowa,  296.  [Wher(^  tlie  vendor,  whose 
wife  did  not  join  in  the  contract,  had  a  homestead  rig^ht  in  th(j  laud,  the  vendee 
had  specitic  performance  nevertheless,  on  his  agreement  to  accept  title  subject  to 
the  homestead.  Watson  v.  Doyle  (111.),  22  N.  E.  613.]  In  other  states  another 
rule  prevails,  and  the  refusal  of  the  vendor's  wife  to  release  her  dower  cither 
enables  the  vendee  to  rescind  or  to  enforce  with  comnonsation.  See  Ileimburg  ■}>. 
Ismay,  35  N.  Y.  Super.  Ct.  37) ;  Zebley  v.  Sears,  38  Iowa,  507.  For  a  case  where 
the  vendor  contracted  to  sell  land,  the  legal  title  of  which  he  held  in  trust  for  his 
wife,  the  contract  being  made  at  her  request,  and  a  conveyance  by  him  being 
decreed  free  from  her  right  of  dower,  see  Rostetter  v.  Grant,  18  Ohio  St.  126. 
A  wife's  contract,  made  jointly  vnih  her  husband,  whereljy  she  agi-eed  to  convey 
her  own  land,  may  be  enforced  against  her  in  equity,  where  the  vendee  has  paid 
the  price,  taken  possession  with  her  consent,  and  made  improvements;  the  land 
■will  be  charged  with  the  amount  paid  and  expended  by  the  vendee.  See  Frai-ey 
V.  ^Vheeler,  4  Oreg.  190.  This  decision  is  based  upon  the  general  power  of  a 
court  of  equity,  and  not  upon  any  statutes  enlarging  the  capacity  of  wives  to  bind 
themselves  by  contract.  It  was  the  ancient  practice  of  the  court,  however,  to 
order  the  husband  to  procure  his  wfe's  consent,  and  to  imprison  him  until  he 
succeeded.  See  Barrington  v.  Horn,  i)  Vin.  Abr.  547,  pi.  35;  2  Kci.  Cas.  Abr.  17, 
pi.  7 ;  Hall  v.  Hardy,  3  P.  Wms.  1G7  ;  Daniel  v.  Adams,  Ambl.  495 ;  Morris  v. 
Stephenson,  7  Ves.  474.  [It  is  held  in  California  that  where  a  contract  to  <;onvey 
land  owned  by  tenants  in  common  fails  to  bind  one  of  them,  spccitii;  jterformancc! 
is  not  available  against  th(;  other  to  compel  the  conveyance  of  his  own  inidiviiled 
share  ;  see  Olsen  v.  Lovell,  91  Cal.  506,  where  one  co-tenant's  name  was  signed  to 
the  contract  by  the  other  without  authority ;  and  Jackson  i\  Tori-ence,  83  Cal.  521, 
where  one  co-tenant,  being  a  married  woman  and  having  failed  to  acknowledge 
the  contract  in  compliance  with  the  statute,  was  not  bound  thereby.] 

(1)  See  jjost,  §  401. 

(2)  For  example,  the  statute  (32  Hen.  \'iii,  ch.  9),  forbids  the  sale  of  a  ])re- 
tended  right  to  land  by  a  pei"son  not  in  possession  ;  so  that  a  contract  which  in 
terms  purpoi-ted  to  sell  and  convey  the  interest  which  the  vendor  claimed  to  have, 
he  not  being  in  possession  (and  the  interest  not  falling  \vithin  any  of  tin;  excep- 
tions), would  bo  illegal.  But  if,  instead  of  thus  purporting  to  sell  an  a.s.serted 
interest  in  the  land  the  person  should  simply  undertake  to  convey  a  ))iece  of  land 
on  a  future  day  named,  and  when  the  day  ai-rives  he  has  a.c(piired  jxissf'ssion, 
such  a  contract  does  not  come  im<lei'  the  statutory  ]irohibiti<)n,  and  is  held  to  be 
binding.  De  Medina  v.  Norman,  9  M.  &  W.  820.  [See  Danforth  v.  Philadi-lphia. 
etc.  R.  R.  30  N.  J.  Eq.  12.] 

•6b7 


IXCAPACITY  OF  THE  DEFENDANT  TO  PERFORM.  375 

to  the  literal  terms,  is  illegal,  they  will,  if  possible,  enforce  the  sub- 
stantial purpose  of  the  contract,  while  departing  from  its  exact 
language,  so  as  to  escape  from  the  statutory  prohibition, (1)  If  a 
contract,  valid  when  made,  has  been  rendered  illegal  by  subsequent 
legislation,  the  tendency  of  the  court  will  be  even  more  marked  to 
execute  its  substance,  if  possible,  so  as  not  to  bring  the  performance 
within  the  exact  and  literal  prohibitions  of  the  statute.  (2) 

Sec.  297.  "Where  there  is  no  element  of  illegality  in  the  contract, 
but  the  defendant  is  incapacitated  from  performing  it  exactly  and 
literally  according  to  its  precise  terms,  if  it  is  otherwise  one  w^hich 
ought  to  be  enforced,  the  courts  will,  if  possible,  decree  a  specific 
execution  according  to  its  substance,  by  making  such  variation  from 
unessential  particulars  as  the  circumstances  of  the  case  require  or 
permit.  It  is  a  fundamental  principle  that  in  granting  the  relief  of 
specific  performance,  a  court  of  equity  wdll,  if  necessary,  distinguish 
between  the  essential  and  the  non-essential  stipulations ;  and,  while 
enforcing  the  former  may  disregard  the  latter,  and  award  in  place  of 
the  omitted  terms  a  suitable  compensation.  The  cases  illustrating 
this  practice  are  numerous,  and  some  of  them  are  collected  in  the  foot- 
notes ;  in  fact  all  the  instances  of  a  compensation,  where  there  has  been 
some  defect  or  failure  in  carrying  out  the  agreement  literally,  are 
examples.(3) 

(1)  The  case  of  Carolan  v.  Brabazon,  3  Jon.  &  Lat.  200,  is  an  illustration.  It 
had  been  made  illegal,  by  statute,  for  a  tenant  in  his  contract  for  a  lease  to  stipu- 
late to  pay  the  tithe-rent  charge  ;  in  an  agreement  for  a  lease  it  was  stipulated 
that  the  tenant  should  pay  a  certain  sum  as  rent,  and  also  the  tithe-rent  charge, 
which  was  a  certain  other  sum.  This  contract  could  not,  of  course,  be  literally 
enforced.  The  court,  however,  granted  a  specific  pei-formance  by  ordering  a. 
lease  which  resei-ved  as  rent  a  sum  equal  to  the  two  amounts  named  in  the  con- 
tract, and  calling  it  all  "rent" — the  lessee  thus  paid  the  amount  he  agreed  ta 
pay,  but  no  part  of  it  was  paid  under  the  name  of  "  tithe-rent  charge." 

(2)  Bettesworth  v.  Dean  and  Chapter  of  St.  Paul,  Sel.  Cas.  in  Ch.  C6.  The- 
corporation  had  covenanted  to  renew  a  lease  for  ninety-nine  years — subsequently 
and  before  the  time  for  renewal  a  statute  prohibited  leases  by  such  bodies  for  sO' 
long  a  term  ;  the  covenant  was  enforced,  as  far  as  possible,  by  compelling  the 
corporation  to  i-enew  for  a  term  as  long  as  they  could  lawfully  grant  under  the 
statute. 

(3)  Carey  v.  Stafford,  3  Sw.  427,  n.  ;  Paxton  v.  Newton,  2  Sm.  &  Grif.  437  ; 
Ei-rington  v.  Aynesly,  2  Bro.  C.  C.  341  ;  Davis  v.  Hone,  2  Sch.  &  Lef.  351  ; 
Frederick  v.  Coxwell,  3  Y  &  J.  514.  [See,  also.  Rector,  etc.,  of  St,  David's  Church 
V.  Wood,  Oreg.  34  Pac.  Rejx  18,  July  17,  1893  For  instances  of  what  is  held  to 
be  a  substantial  variation,  see  Hetfield  v.  "Willey,  105  111.  286  ;  Donner  v.  Reden- 
baugh,  Gl  Iowa,  269 ;  Moses  v.  McClain,  82  Ala.  370  ;  Stevenson  v.  Jackson,  40 
Mich.  702.]  Cases  of  contracts  with  projected  railway  companies,  viz.,  Stanley  v. 
Chester  R'y  Co  ,  9  Sim.  264  ;  3  My.  &  Cr  773 ;  Greenhalgh  v.  Manchester,  etc,,. 
R'y  Co.,  9  Sim  416 ;  3  My.  &  Cr,  784  ;  Earl  of  Lindsay  v.  Great  Northern  R'y 
Co.,  10  Ha.  664.  See  the  section  on  partial  enforcement  and  compensatiou  in 
chapter  3,  jjost. 

388 


376  SFRCIFIC  VERtOUMAyCK  OF  CO.XTItACTS. 

"Where  defendant's  incapacity  is  partial. 

k5EC.  21)8.  jSlcoihI.  The  iiK'apacity  may,  by  the  vory  teriiiiS  uf  the 
contract,  extend  to  a  part  of  it  only,  while  he  is  fully  able  to  execute 
the  other  part.  ThLs  condition  supposes  that  the  agreement  is  separa- 
ble, and  is  distinguishable  from  that  examined  in  the  two  preceding 
paragraphs,  where  the  inability  of  the  defendant  to  carry  out  the 
agreement  according  to  its  exact  and  literal  terms  extends  to  its 
whole  scope,  and  the  whole  contract  is,  therefore,  more  or  less  modilied 
in  the  decree  for  performance.  Under  the  condition  now  to  be  con- 
sidered, the  agreement  consists  of  two  or  more  parts,  some  of  which 
the  defendant  is  capable  of  performing,  and  the  other  he  is  incapable. 
The  most  important  kind  of  agreements  presenting  the  questions,  are 
those  which  are  framed  in  the  alternative,  and  which,  by  the  express 
terms,  give  the  defendant  an  election  which  one  of  these  alternatives 
he  will  adopt  and  carry  into  operation.  If  the  defendant  was 
originally,  or  subsequently  becomes,  incapacitated  from  performing 
one  of  these  alternatives,  the  question  arises :  Is  he  bound  to  execute 
the  other,  in  respect  to  which  there  is  no  such  incapacity  ?  It  will  be 
noticed,  that  the  only  element  of  the  agreement  which  can  occasion 
any  doubt  or  question  as  to  the  liability,  is  the  express  right  of  election 
originally  given  to  the  party;  because,  if  the  inability  to  perform  one 
alternative  necessarily  forces  him  to  adopt  the  other,  then  the  power 
of  election  is  taken  away.  In  answering  the  question,  it  will  be  found 
that  the  defendant's  liability  depends  upon  the  nature  of  the  extrinsic 
circumstances  which  made  it  impossible  to  perform  one  of  the  alterna- 
tives.    These  different  circumstances  will  be  considered  separately 

Where  one  alternative  is  impossible  ab  initio. 

Sec.  299.  1.  If  the  incapacity  existed  in  respect  to  one  of  the 
alternatives  from  the  veiy  beginning — at  and  from  the  time  of  con- 
cluding the  agreement — whether  on  account  of  its  illegality  or  other 
cause,  then  the  right  of  election  is  ipso  facto  destroyed — the  bestowal 
of  it  is  a  nullity — and  the  obligation  to  perform  the  other  alternative 
is  as  single  and  complete  as  though  it  constituted,  in  form,  the  entire 
contract.(l) 

"Where  an  alternative  originally  possible  becomes  impossible 
by  the  act  of  God. 

Sec.  300.     2.  If  the  defendant's  incapacity  to  perform  one   alter- 

(1)  Wigley  ?).  Blackwal,  Cro.  Eliz.  780;  Coin.  Dig-.  Condit.  K.  2;  Da  Costa  v. 
Davis,  1  B.  &  P.  242,  where  a  l)oii(l  was  conditioned  either  to  jiay  a  sum  named, 
or  to  do  something-  which  was  hehl  by  the  court  to  be  illegal,  and  the  defendant 
"bound  to  do  the  other — i.  e.,  pay  the  sum.  Simmonds  v.  Swaine,  1  Taunt.  549,  an 
award  ordered  a  sum  of  money  to  be  paid,  or  to  be  secured,  not  specifying  the 
kind  or  amount  of  the  security.  Held,  that,  although  this  alternative  wjls  void 
for  uncertainty,  the  other  should  he.  pei-fnnncil. 

389 


INCAPACITY    OF  TIIK   DEFENDANT   TO    FElitORM.  377 

native  arises  after  the  conclusion  of  the  agreement  from  an  act  of  God, 
it  cannot  be  hiid  down  as  a  universal  rule,  that  because  of  his  right  of 
election  lie  is  absolved  from  executing  the  other  alternative,  although 
this  doctrine  has  been  judicially  announced. (1)  In  the  absence  of 
any  provision  or  language  of  the  contract  showing  a  contrary  inten- 
tion, the  defendant  cannot  be  forced  to  adopt  and  carry  out  the  other 
alternative,  because  the  election  w-as  expressly  given  to  him ;  he  is  not 
in  fault,  and  it  would  be  inequitable  to  visit  on  him  the  entire  weight 
of  the  providential  event.  The  court,  however,  will  be  guided  by  the 
intention  of  the  parties  as  shown  in  their  agreement.  If  from  any  pro- 
vision, or  from  the  whole  contract,  the  intention  fairly  appears  that 
the  other  and  possible  alternative  should  be  performed,  notwithstand- 
ing the  act  of  God  which  has  cut  ofi'  all  power  of  election,  such  inten- 
tion will  be  followed,  and  carried  into  effect  if  necessary  by  a  decree 
for  a  specific  execution. (2) 

"Where  one  alternative  originally  possible  becomes  impossible 
by  the  act  of  the  plaintiff 

Sec.  801  3.  If  the  defendant,  originally  capable  of  performing 
either  alternative,  is  rendered  incapable  of  performing  one  of  them 
by  the  act  of  the  plaintiff,  on  the  plainest  principles  of  justice  and 
equity,  he  is  thereby  relieved  from  all  obligation,  and  is  not  bound  to 
carry  out  the  other  alternative ;  because  the  party  to  be  benefited  by 
the  contract  has  himself  destroyed  the  power  of  election  which 
the  agreement  expressly  gave.  Under  such  circumstances,  the  de- 
fendant's liability  is  discharged  even  at  law  as  well  as  in  equity.  (3) 

(1)  In  Laug-htei-'s  Case,  5  Co.  Rep.  21,  b.  ;  also,  suh.  noin.  Eaton's  Case,  Moore, 
357 ;  sub.  noiit.  Eaton  ii.  Laughter,  Cro.  Eliz.  398,  it  was  said  by  the  court,  as 
reported  :  "  Where  the  condition  of  a  bond  consists  of  two  parts  in  the  disjunctive, 
and'  both  are  possible  at  the  time  when  the  bond  was  made,  and  afterwards  one 
of  them  becomes  impossible  by  the  act  of  God,  the  obligor  is  not  bound  to  perfoi-ni 
the  other  part."     See,  also,  S.  P.  in  "Warner  v.  White,  T.  Jon.  95, 

(2)  The  doctrine  quoted  in  the  last  note  is  now  held  to  be  incorrect,  if  stated  as 
a  universal  rule.  It  was  a  mei"e  dlctmn  ;  the  case  called  for  no  such  decision, 
for  both  alternatives  were,  in  fact,  impossible.  See  Bai-kworth  v.  Young,  4  Dre%v. 
1,  24,  and  also  the  repoi-t  of  the  case  in  Cro.  Eliz.  398.  That  the  liability  of  the 
defendant  to  perform  or  not  the  .second  alternative  depends  upon  the  intent  of 
the  parties,  as  gathered  from  the  whole  agreement,  is  fully  settled  by  subsequent 
cases.  See  Studholme  u.  Mandell,  1  Ld.  Raym.  279  ;  Anon.  1  Salk.  170  ;  Drum- 
mond  V.  Duke  of  Bolton,  Say.  243 ;  More  v.  Morecomb,  Cro.  Eliz.  864.  The 
principle  which  underlies  this  question  was  fully  discussed  and  most  clearly 
stated  in  Barkworth  v.  Young,  4  Drew.  1,  25,  by  Kixderslby,  V.  C.  But  .«ee 
Jones  V.  How,  7  Hare.  267  ;  9  C.  B.  1. 

(3)  G7'enningham  v.  Ewer,  Cro.  Eliz.  396,  539,  which  held  that  where  an  obligor 
is  bound  by  his  bond  to  do  one  or  the  other  of  two  things,  and  the  obligee  disables 
him  from  pei'forming  one  of  them,  the  law  discharges  him  from  the  other.  Basset 
».  Basset,  1  Mod.  265  ;   2  Mod.  200  ;  Com.  Dig.  Condition,  K.  2. 

390 


378  SPECIFIC  rhiiFouMAXci:  of  co.x'niAcrs. 

If,  however,  the  incapacity  to  perform  one  alternative  has  resulted 
from  the  defendant's  own  act,  omission,  or  default,  it  is  (Miuully  clear 
that  he  can  be  compelled  to  execute  the  other.  His  own  conduct  in 
rendering  one  alternative  impossible  is  a  virtual  election  to  adopt  the 
other,  and  he  cannot  be  heard  to  plead  an  incapacity  which  he  himself 
lias  caused,  while  there  is  another  way,  oi»en  fur  him  to  iuUill  hir^ 
engagement.  It  is  only  when  delendaur  has  deprived  himself  of  all 
power  to  carry  out  his  agreement,  in  any  manner,  that  a  court  of 
equity  withholds  its  own  remedy  of  specific  erdbrcement  and  leaves 
the  defendant  to  his  legal  liability  for  damages. 

"Where  one  alternative  originally  possible  becomes  impossible 
by  the  subsequent  act  of  a  stranger. 

Sec.  302.  4.  If  the  defendant's  incapacity  to  perform  one  of  the 
alternatives  is  thus  caused  by  the  subsequent  act  of  a  third  person, 
without  the  aid  or  procurement  or  consent  of  the  plaintiff,  then,  as  it 
seems,  he  remains  bound  to  carry  out  his  contract  by  perfornnng  tlie 
other  alternative.  The  case  is  the  same  in  its  result,  and  perhaps  in 
its  principle,  as  that  in  which  one  of  the  alternatives  is  impossible 
from  the  beginning  (1) 


SECTION  XVIII. 

Incapacity  of  the  court  to  enforce  a  performance. 

Section  303.  This  species  of  impracticability  in  granting  the  equi- 
table remedy,  which  is  much  more  important  and  extensive  in  its 
application  than  either  of  those  described  in  the  two  foregoing 
sections,  assumes  that  the  contract  is  valid,  and  that  the  defendant  is 
able  to  do  what  he  has  undertaken  to  do,  but  that,  through  the  want 
of  the  appropriate  means  and  instruments,  the  court  is  unable,  while 
pursuing  its  ordinary  methods  of  administering  justice,  either  to 
render  a  decree  or  to  enforce  the  decree  which  it  should  make,  and 
thus  compel  a  specific  performance  of  his  agreement  by  the  defendant. 
With  respect  to  the  nature  or  cause  of  the  impossibility,  these  con- 
tracts are,  therefore,  divisible  into  two  groups,  or  classes,  nam<>ly, 
those  having  such  provisions  and  terms  that  a  court  is  umd>le  to  render 

(1)  See  a  case  quoted  in  Gi-enningham  v.  Ewer,  Cro.  Eliz.  397,  which  held  that 
if  a  person  is  ohlig-ed  to  convey  certain  lands,  or  to  marry  A.  S.  before  a  specified 
day,  and  before  the  day  arri\es  a  stranger  marries  A.  S.,  then  the  obligor  must 
convey  the  lands  ;  hut  otht^-wise.  if  the  obligee  married  A.  S.,  for  then  the  obligor 
would  be  freed  from  all  liability. 

391 


INCAPACITY  OF   THE    COURT   TO    ENFORCE.  379 

a  decree  ordering  their  performance,  and  those  having  such  provisions 
and  terms  that  the  court  is  unable  to  carry  into  effect  tlie  decree  for  a 
performance  which  it  might  make. 

Those  having  such  terms   and  provisions   that  the  court  is 
unable  to  render  a  degree  ordering  their  performance. 

8ec.  304.  1.  In  all  the  cases  which  constitute  this  grou}),  the  diifi- 
culty  lies  in  the  subject-matter  which  is  something  which  the  court 
cannot  ascertain  by  judicial  proof,  or  cannot  lay  hold  of,  so  as  to 
define  and  establish  the  rights  concerning  it.  If  it  were  possible  to 
accomplisli  this  fundamental  part  of  the  decree,  there  would  be  no 
insurmountable  obstacle  to  a  specific  execution.  It  may,  therefore,  be 
laid  down  as  a  general  proposition,  that  when  the  subject-matter  of  a 
contract — that  concerning  whicli  the  stipulations  are  made — is  of  such 
a  nature  that  the  court  of  equity  cannot,  consistently  with  the  contract 
itself,  ascertain  the  rights  of  the  parties  by  means  of  a  judicial  inquiry, 
or  cannot  define  and  establish  these  rights  by  its  decree,  a  specific 
performance  of  the  agreement  will  be  withheld.  The  cases  to  which 
this  principle  has  been  applied  are  few  ;  but  it  would  necessarily  be 
extended  to  all  new  cases  which  should  present  the  same  inherent 
features.  The  following  are  certain  species  of  agreements  which  have 
been  passed  upon,  and  which  plainly  fall  under  this  general  class. 

»Sec<  305  1.  Contracts  relating  to  the  manufacture  or  sale  of 
secret  medicines,  and  of  all  other  commodities  or  processes  whose 
composition  or  nature  is  a  secret,  where  the  agreement  recognizes  the 
secret  and  expressly  or  impliedly  stipulates  that  it  shall  not  be 
divulged  or  publicly  exposed.  The  process  being  secret,  and  the 
agreement  providing  for  its  preservation,  the  court  could  not  inquire 
into  the  process,  or  ascertain  by  evidence  whether  the  terms  had  been 
violated,  or  define  and  establish  the  rights  and  duties  of  the  parties, 
without  defeating  the  main  purpose,  or  one  of  the  main  purposes,  of 
the  contract.  Such  a  contract  will  not,  therefore,  be  affirmatively 
enforced,  nor  will  its  performance  be  negatively  compelled  by  means 
of  an  injunction  restraining  its  breach.(l) 
Contracts  concerning  a  good-will. 

Sec.  306.  2.  Contracts  relating  to  a  good-will  alone — as  for  its 
sale  or  transfer — unconnected  with  the  business  and  premises  of 
wliich  it  is  an  incident,  cannot  be  specifically  enforced.  A  good- 
will is  a  mere  advantage,  and  not  a  right;  it  is  the  tendency, 
from  habit,  of  customers  to  resort  to  the  same  particular  place 
where  they  have  been  accustomed  to  trade ;  it  is,  therefore  en- 
tirely intangible  and  speculative,  and  is  something  which  the  court 

(1)  Newberry  v.  James,  2  Meriv.  44(5  ;  Williams  v.  Williams,  3  Meriv.  157. 

392 


380  SPECIFIC  rERFORMAyCK    OF   COyTUAC'/S. 

cannot  lay  hold  of  and  control  by  its  decree. (1)  But  where  a  transfei 
of  the  good-will  is  included  with  the  sale  of  m  business  and  premises 
to  which  it  is  incident,  the  whole  contract  will  be  aliirniatively 
enforced,  and  the  special  stipulations  of  the  ven(h»r  for  the  preserva- 
tion and  assignment  of  the  good-will  will  be  negatively  execute<l  by 
means  of  an  injunction  restraining  him  froin  setting  u]*  a  new  business 
at  or  near  the  place,  or  from  designedly  drawing  <>lf  the  customcis  in 
any  other  manner.(2)  As  an  exam})le  of  this  rule,  ag-reemeuts  for  tht" 
sale  of  an  attorney's  business  and  good-will  liave  been  specifically 
enforced  in  equity  ;(8)  although  their  validity  has  been  doubted  by 
eminent  judges. (4)  It  has  been  doubted  in  England  whether  the 
court  of  equity  can  decree  a  specific  performance  of  the  covenants  con- 
tained in  a  "  farming  lease,"  because,  as  these  stipulations  relate  to 
the  mode  of  using  and  tilling  the  soil  in  a  proper  manner,  the  court  is 
unable  to  decide  the  questions  as  to  "  good  husbandry,"  which  are 
thus  raised. (5)  There  does  not  seem,  however,  to  be  a  greater  diffi- 
culty in  such  a  case  than  is  presented  by  any  otlier,  the  decision  of 
which  turns  upon  questions  of  knowledge  and  skill,  and  must  be 
largely  based  upon  the  testimony  of  experts. 

Contracts  having  such  terms  and  provisions  that  the  court  is 
unable  to  carry  into  effect  its  decree  for  a  specific  per- 
formance. 

yEC.  807.  II.  In  this  class  of  agreements,  w^hich  is  by  far  the 
most  numerous  and  important,  the  jurisdiction  is  declined,  not 
because  it  is  impossible  to  formulate  a  decree  which  shall  order 
everything  necessary  for  a  complete  performance,  nor  even  because 
a  compulsory  execution  of  such  decree  is  absolutely,  and  in  the 
nature  of  things  impossible,  but  because  the  enforcement  of  the 
decree  would  unreasonably  tax  the  time,  attention,  and  resources 
of  the  court,  and  thereby  interfere  too  much  with  its  public 
duties  towards  other  suitors,  and  in  the  general  administration 
of  justice.     Take  the  case,  which  is  the  extreme  one,  of  a  contract  for 

(1)  Bozon  V.  Farlow,  1  Mer.  4.")9  ;  Baxter  v.  Connolly,  1  J.  &  "\V.  .'»76  ;  Coslake 
V.  Till,  1  Russ.  376. 

(2)  Darby  v.  Whittaker,  4  Drew.  134,  13!),  140  ;  Cruttwcll  v.  Lye.  17  V.-s.  33.5  ; 
Chissinn  v.  Dewes.  5  Russ.  20  ;  Sliu('kl(!  v.  BaktM-,  14  Ves.  468,  and  see  cases 
cile<l  ant<\  §§  24,  25. 

^3)  Whittaker  v.  Howe,  3  Boav.  383  ;  Aubin  v.  Holt,  2  K.  &  J.  ()(!. 

(4)  Caiuller  t).  Candler,  Jai;.  231,  per  Lord  Ei.nox  ;  Bozon  v.  Farlow,  1  Mer.  4r)0, 
jier  Sir  William  Grant  ;  Thornbnry  v.  Bevills,  1  Y.  &  C.  C.  C.  .5.")4.  j)er  K.mcht- 
Bkuce,  V   C.  ;  Gilfillan  v.  Henderson,  2  CI.  &  Fin.  1. 

(5)  Rayner  v.  Stone,  2  Eden,  128,  per  Lord  Northington  ;  and  for  an  analofjoua 
case,  see  Starens  v.  Newsome,  1  Tenn.  Ch.  239,  in  which  a  contract  to  cultivate  a 
certain  crop  in  a  particular  manner,  and  to  cut,  cure,  and  deliver  it  in  a  prescribed 
mode,  was  held  impossible  to  be  spe<-ifi(tally  enforced. 

393 


INCAPACITY  OF  THE    COL'liT   TO    hNFORCi:.  381 

the  construction  of  an  extensive  line  of  railway.  It  is  plain  that  a 
court  of  equity  can  render  and  put  into  a  proper  form  a  decree  order- 
ing the  specific  execution  of  this  contract,  with  about  the  same  ease 
that  it  can  make  a  decree  ordering  the  execution  and  delivery  of  a 
deed  of  conveyance  with  the  requisite  covenants  and  other  provisions. 
It  is  also  plain  that,  by  means  of  a  comprehensive  and  minute  scheme 
of  operations,  prepared  by  experts,  and  by  the  help  of  special  masters 
overseeing  the  work  and  reporting  its  progress  from  time  to  time,  the 
court  might  enforce  this  decree,  although  months,  or  even  year.-, 
should  1)0  required  for  its  completion  ;  l)ut  to  do  so  would  occupy  the 
care,  attention,  and  time  of  the  court,  to  the  exclusion  of  other  matters, 
and  to  the  manifest  detriment  of  the  public  business.  A  judicial 
tribunal  cannot  thus  sacrifice  the  interests  of  other  suitors,  and  even 
of  society,  for  any  benefit  which  might  accrue  to  individual  parties. 
For  this  reason,  rather  than  from  any  inherent  and  absolute  impossi- 
bility, equity  refuses  to  exercise  its  jurisdiction  under  such  circum- 
stances. In  some  cases,  however,  of  special  and  exceptional  contracts 
properly  belonging  to  this  class,  where  the  inconvenience  would  be 
comparatively  slight,  and  where  its  interference  is  demanded  by  well- 
settled  principles,  equity  does  exercise  its  jurisdiction  and  decree  a 
specific  performance.(l)  The  following  are  the  important  species  of 
agreements  in  respect  of  which  the  remedy  is  generally  declared  to 
be  impracticable. 

Sec.  308.  1.  A  cojitinuing  covenant  will  not  be  negatively  enforced 
by  an  injunction  restraining  its  breach,  when  the  acts  alleged  to  be  in 
violation  of  it  are  numerous,  and  each  one  of  them  would  require  a 
separate  judicial  examination — perhaps  an  action  at  law^ — in  order  to 
ascertain  whether  it  constituted  a  breach  or  not,  and  where  the  same 
controversy  would  arise  with  respect  to  every  violation  of  the  injunc- 
tion ;  as,  for  example,  a  covenant  not  to  sell  water  from  a  certain  well 
to  the  plaintiff' &  injury. (2)  In  such  a  case,  each  alleged  breach  would 
require  a  separate  controversy  of  fact.  An  injunction,  in  the  very 
terms  of  the  covenant  restraining  "  sales  to  the  injury  of  the  plaintiff," 
would  not  remove  the  difficulty,  because  the  same  question  would  arise 
upon  every  breach  of  it,  viz.,  whether  the  plaintiff  was  in  fact  injured ; 

(1)  See  ante,  ^  22,  23. 

(2)  Collins  V.  Plumb,  16  Ves.  454  ;  and  see  City  of  London  v.  Nash,  3  Atk.  512, 
515.  This  i-ule  was  recognized  and  acted  upon  in  Caswell  v.  Gibbs,  33  Mich.  331. 
A  contract  by  defendant  "  never  to  tow  vessels  in  competition  "  with  plaintiff,  it 
was  held,  could  not  be  enforced  by  injunction  ;  since  every  instance  of  alleged 
breach  would  require  a  separate  investigation  in  fact  to  asc<>rtaiu  whether  the 
defendant's  act  wass  rpally  in  conini'Htidii  with  the  ]ilMintiff. 

•6m 


A 


382  SPECIFIC   PERFOliMAycK    OF   CO.\TliAtTS. 

and  an  injunction  restraining  all  sales  would  be  broader  than  the^ 
covenant.  'J'lie  same  obstacles  would  arise  in  tlie  way  t)t'  negatively 
enforcing  every  other  continuing  covenant  or  agreement  of  the  kind 
described. 

Contracts  for  sale  at  a  price  to  be  fixed  by  valuers. 

Sec.  oOi).  2.  Wherever  ir,  is  an  esseutial  part,  of  a  cnutract  for  the 
sale  of  property  that  its  price  is  to  be  tixed  by  valuers,  whose  appoint- 
ment is  also  tlierein  stipulated  for,  a  specific  performance  will  not  be 
decreed  unless  the  amount  has  been  determined  according  to  the  pro- 
vision, and  in  such  a  final  manner  as  to  become  a  term  of  the  contract. 
The  parties  having  seen  fit  to  rely  upon  the  judgment  of  persons 
selected  by  themselves,  the  court  has  no  legitimate  means  of  making 
the  award  itself,  or  of  directing  it  to  be  made  by  a  master  or  an 
expert,  for  this  would  be  substituting  another  contract  in  the  place  of 
the  one  to  which  the  parties  had  assented. (1)  It  makes  no  difference 
whether  the  parties,  or  oTie  of  them,  fail  to  appoint  the  valuers,  or 
whether,  on  being  appointed,  they  neglect  or  refuse  to  make  an  award, 
or  whether  one  of  the  parties  refuses  to  permit  his  nonunee  to  go  on. (2) 
If,  however,  the  provision  for  a  valuation  is  not  an  essential  element 
of  the  agreement,  but  is  merely  collateral  or  incidental,  or  auxiliary 
to  its  main  scope  and  purpose,  the  court  will  specifically  execute  the 
contract — if  otherwise  a  proper  one — and  in  so  doing  will,  in  some 
mannei",  fix  upon  the  value.  The  strong  tendency  of  the  recent 
decisions  is  towards  the  construction  of  contracts  so  as  to  admit  this 
latter  rule,  and  to  limit  the  operation  of  the  doctrine  as  first  stated. (3) 

Contracts  for  personal  services. 

8ec,  310.  3.  The  instances  embraced  in  the  two  foregoing  sub- 
divisions are  rare  ;  those  which  follow  are  of  constant  occurrence. 
Contracts  for  personal  services,  where  the  acts  stipulated  for  re- 
quire special  knowledge,  skill,  ability,  experience,  or  the  exercise 
of  judgment,  discretion,  integrity  and  the  like  personal  qualities, 
on  the  \r<xvi  of  the  employes,  or  where  the  services  are  confidential, 
— in  short,  wherever  the  full  performance,  according  to  the  spirit 
of  the  agreement,  rests  in  the  individual  will  of  the  contracting 
party,  courts  of  equity  have  no  direct  and  efficient  means  of  aihrnia- 
tively  compelling  a  specific  execution ;  at  most,  they  could  only  order 

(1)  Milnes  v.  Gery,  14  Ves.  400  ;  Wilks  v.  Davis,  3  Meiiv.  .")07  ;  Collins  ?'. 
Collinp,  26  Beav.  306  ;  Vickers  v.  Vickers,  L.  R.  4  Va\.  529  ;  Richardson  v.  Smith, 
L.  R.  5  Ch.  648  ;  Earl  of  Dai-nlcy  i\  London,  etc.,  R'y  Co.,  3  DeG.  J.  &  S.  24  ; 
L.  R.  2  H.  L.  43  ;  Hopkins  v.  Gil  man,  22  Wise.  476. 

(2)  Ibid ;  Vickers  v.  Vic.kei-s,  L.  R.  5  Eq.  535. 

(3)  Dinham  v.  Bradford,  L.  R.  5  Ch.  519  ;  Jackson  v.  Jackson,  1  Sm.  &  Gif.  184  ; 
Richardson  v.  Smith,  L.  R.  5  Ch.  648  ;  Smith  V.  Peters,  L.  R.  20  Eq.  511. 

305 


INCAPACITY  OF  THE   COURT  TO    ENFORCE.  383 

the  acts  to  be  done  and  punish  the  defendant  refusing  by  fine  or 
imprisouuient.(l)  8ucli  contracts  may,  however,  according  to  the 
doctrine  now  universally  established  in  tlie  English  equity  courts,  be 
negatively  enforced  by  injunction  whether  they  contain  express  nega- 
tive stipulations  or  not;  that  is,  whether  the  defendant  specially 
agrees  not  to  do  certain  acts,  or  oidy  affirmatively  undertakes  to  do 
certain  other  acts  (2)  The  rule  was  at  one  time  settled  in  England, 
as  well  as  in  this  country,  that  in  agreements  for  purely  personal 
services,  such  as  described  above,  where  the  court  could  not  decree  an 
affirmative  performance  of  the  positive  stipulation,  it  would  not  inter- 
fere to  accomplish  the  same  object  in  an  indirect  manner,  and  enforce 
the  negative  stipulation  by  means  of  an  injunction ;  and  a  fortiori 
would  not  indirectly  enforce  the  positive  stipulations  by  enjoining 
their  breach  when  there  were  no  negative  stipulations. (3)  This  doc- 
trine, however,  was  subject  to  certain  limitations^  especially  when  the 
contract  grew  out  of  or  involved  the  relation  of  partnership  between 
the  parties,  or  the  parties  stood  to  each  other,  in  respect  to  the  matters 
contracted  for,  as  partners,  the  court  would  negatively  enforce  it  by 
restraining  a  breach,  although  it  could  not  compel  affirmatively  the 
performance  of  any  stipulation. (4)  And  the  court  would  not,  in  pur- 
suance of  this  doctrine,  refuse  to  restrain  a  breach  of  a  contract 
because  it  contained  some  stipulation  which,  it  might  afterwards 
appear,  could  not  be  afhrmatively  enforced. (5) 

(1)  Johnson  v.  Shrewsbury,  etc  ,  R'y  Co.,  3  De  G.  M.  &  G.  914,  926 ;  Pickering 
V.  Bp.  of  Ely,  2  Y.  &  C  C.  0,  243  ;  Stocker  v.  Urockelbank,  3  McN.  &  G.  250  ^ 
Home  V  London  &  N.  W.  P'y  Co..  10  W.  R.  170 ;  Brett  v.  East  India,  etc.,  Co., 
12  \V  R  596.;  Mair  v.  Himiilaya  Tea  Co.,  L.  R.  1  Eq.  411 ;  Chinnock  v.  Sains- 
bury,  30  L,  J  (N.  S.)  Ch.  409  ;  Palmer  v.  Scott,  1  R.  &  My.  391  ;  De  Rivatinoli  v. 
Corsetti,  4  Paige,  264  ;  Hamblin  v.  Dinneford,  2  Edw.  Ch.  529 ;  Sanquirico  v. 
Benedetti,  1  Barb  815  ';  Ilaight  v.  Badgeley,  15  Barb.  501  ;  Marble  Co.  v.  Ripley, 
10  Wall.  3^9  ,  Randall  v  Latham,  36  Conn.  48  (an  agreement  to  construct  a  spout 
in  a  water-course) ;  Richmond  v  Dubu(pie,  etc  ,  R.  R.,  33  Iowa,  422 ;  Cooper  v.  Pena, 
21  Cai  404,411;  Ford  v.  Jermon,  6  Phila.  6  (contract  of  an  actor);  Ryan  v. 
Mutual  Tontine  Assn  (1893),  1  Ch.  116;  Sturgis  v.  Galindo,  59  Cal.  28  (contract 
to  prospect  for  a  mine)  ;  Alleghany  Baseball  Club  v  Bennett,  14  Fed.  Rej:).,  257  ; 
Wollensak  v  Briggs,  20  Bradwell,  50  (contract  calling  for  peculiar  inventive 
g-jniu3  in  constructing  a  machine) ;  Wilhngham  v.  Hoover,  74  Ga.  233  (contract  to 
superintend  a  saw-mill)  ;  Evans  v.  Union  Pac  R'y  Co.,  58  Fed.  Rep.  497  (conti-act 
of  alliance  between  two  railroad  companies,  containing  a  provision  that  one  of  the 
roads  "  shall  at  all  times  be  oijerated  in  its  own  intere.-t");  Washburn  &  Moen 
Mfg  Co.  t)  Freeman  Wire  Co  ,  41  Fed.  Rep  410  (conti-act  to  license  another  to 
manufacture  an  article) ;  Rutan  v.  Crawford,  45  N.J.  Eq.  99  [contracts  to  sup- 
port, etc.,  Grimmer  y.  Carlton,  93  Cal.  189  ;  Mowers  ■?'  Fogg,  45  N.  J  Eq  120  j 
Ikerd  v.  Beavers,  1 06  Ind.   483 ;  Bourget  v   Monroe,  58  Mich.  563] 

(•J)  See  ante,  §J  24,  25. 

(3)  An  actor  agreed  to  perform  at  a  certain  theatre  for  a  certain  term,  the  court 
would  not  compel  obedience  by  restraining  him  from  i:)erforming  at  any  other 
place.  Kemble  v.  Kean,  6  Sim.  333  And  defendant  having  agreed  to  furnish 
drawings  for  maps  to  the  jilaintiffs  exclusively,  which  tlie  plaintifls  were  exclu- 
sively to  sell,  as  the  coui-t  could  not  compel  defendant  to  furnish  the  drawings,  it 
would  not  i-osti-ain  him  from  selling  the  maps  himself.  Baldwin  X).  Soc.  for  Dift'. 
of  Useful  Knowledge,  9  Sim.  393.  And  see  Kimberley  v.  Jennings,  6  Sim.  340  ; 
Clarke  v.  Price,  2  J.  Wils.  157. 

(4)  Morris  1).  Coleman,  18  Ves  437;  6  Sim.  335;  Kemble  v.  Kean,  6  Sim.  333; 
De  Rivatinoli  v.  Corsetti,  4  Paige,  264. 

(5)  Whittaker  v  Howe,  3  Beav.  383,  395. 

y96 


384  HFEVIFIU   rKUFUKMAMCE    Of   VOATliACJS. 

Sec.  311.  The  (loctrine  hari,  however,  been  compU'tfly  overt  hiowii 
or  abandoned  in  tlie  Englisli  courts.  As  stated  in  a  former  section(l), 
it  was  iirst  held  that  when  tlie  ag'reement  for  i)iii't'ly  personal  services 
contains  positive  and  negative  clauses,  and  a  -iM-cilic  perforinance  of 
the  former  cannot  be  affirmatively  decreed,  the  couit  will  sill!  restrain 
a  breach  of  the  latter,  although  a  specific  e>i,iciit.ioii  of  the  wlioU'  con- 
tract is  thus  indirectly  secured. (2)  This  new  rule  was  soon  carried 
further,  and  it  was  held  that  the  breach  of  a  con^.ract  for  peixmal 
services  would  be  enjoined,  although  it  contains  no  exi)ress  negative 
stipulations. (3)  If  the  stipulations  which  cannot  be  specilically 
enforced  are  wholly  on  the  part  of  the  plaintiff",  they  would  present 
no  obstacle  to  an  injunction  restraining  the  defendant  from  violating 
the  contract  on  his  part;  the  plaintiff's  performance  of  liis  own  stipula- 
tions would  be  indirectly  compelled  by  tlie  injunction,  since  his  fail- 
ure would  at  once  cause  a  dissolution  of  the  injunction. (4) 

Contracts  whose  performance  would  be  continuous. 

Sec.  312.  4.  Finally,  contracts  w'hich  by  their  terras  stipulate  for 
a  succession  of  acts,  whose  performance  cannot  be  consummated  by 
one  transaction,  but  will  be  continuous,  and  require  protracted  super- 
vision and  direction,  with  the  exercise  of  special  knowledge,  skill  or 
judgment  in  such  oversight — such  as  agreements  to  repair  or  to 
build,  to  construct  works,  to  build  or  carry  on  railways,  mines,  qiuu- 
ries,  and  other  analogous  undertakings  —  are  not,  as  a  general  rule, 
specifically  enforced.(5) 

(1)  Anfe,  §§  24,  £5. 

(2)  Luiuley  v.  Wag-iier,  1  D.^G.  M.  &  (i.  G'>)4.      Ami  see  DietricksLMi  v.  Cahburii, 

2  Ph.  .')2;  Great  Nertheni  Ry.  Co.  v.  Manchester,  etc.,  lly.  Co.,  5  DeG.  &Sni.  lo8  ; 
Hills  V.  CroU,  1  DeG.  M.  &  G.  027,  n.  ;  2  Phil.  00. 

(3)  Webster  v.  Dillon,  3  Jur.  (N.  S.)432. 

(4)  Stocker  r.  Wedderburn,  3  K.  &  J.  393,  405. 

(5)  Errington  v.  Aynesly,  2  Bro.  C.  C.  343  ;    2  Dick.  692  ;    Lucas  v.  Commerford, 

3  Bro.  C.  C.  166 ;  Mosely  v.  Virgin,  3  Ves.  184 ;  Flint  v.  Brandon,  8  Ves.  159  ;  Pax- 
ton  V.  Newton,  2  Sm.  &  Gif.  437  ;  South  Wales  Ry.  Co.  V.  Wythes,  1  K.  &  J.  186  ; 

5  DeG.  M.  &.  G.  880 ;  Booth?).  Pollard,  4  Y.  &  C.  Ex.  61 ;  Pollard  v.  Clayton,  1  K. 

6  J.  462  ;  Gari-ett  v.  Banstead,  etc.,  Ry.  Co.,  4  DeG.  J.&  S.  462,  465,  467  ;  Munro 
v.Wivenhoe,  etc.,  Ry.  Co.,  4  DeG.  J.  &  S.  729,  732,  per  Kmght  Bruce,  L.  J. ;  Ger- 
vais  V.  Edwards,  2  Dru.  &  W.  80 ;  Counter  v.  Macpherson,  5  Moo.  P.  C.  83 ;  Ford 
V.  Stuart,  15  Beav.  493  ;  Peto  v.  Brighton,  etc.,  Ry.  Co.,  1  H.  &  M.  468  ;  Heathcote 
V.  North  Staffordshire  Ry.  Co..  20  L.  J.  (N.  S.)  82 ;  Hamilton  r-.  Dunsford,  6  Jr.  Ch. 
Rep,  412  ;  Moi-rison  v.  Barrow,  1  DeG.  F.  &  J.  633 ;  Powell  Duffryn  Steam  Coal 
Co,  V.  Taff  Vale  Ry.  Co.,  L.  R.  9  Ch.  331  ;  Biackettw.  Bates,  L.  R.  1  Ch.  117,  revers- 
ing 2  H.  &  M.  270  ;  Fothergill  v.  Rowland,  L.  R.  17  Eq.  132  ;  DeMattos  v.  Gilison, 

4  DeG.  &  J.  276,  297,  per  Lii.  Chelmsford  ;  Mann  v.  Stephens.  15  Sim.  .S79  ;  Ber- 
nar-d  v.  Meara,  12  Ir.  Ch.  389  ;  Armstrong  7'.  Courteney.  15  Ir.  Ch.  138  ;  Men-hants' 
Trading  Co.  v.  Banner,  L.  R.  12  E(i.  18  ;  Wht-.itley  ??.  Westminster  Brymbo  Coal  Co., 
L.  R.  9  Eq.  5:^8  ;  Marble  Co.  v.  Ripley,  10  Wall.  340;  Port  Clinton  R.  R.  v.  Cleve- 

3i)7 


FACTS  SUBSEQUENT   TO  CONCLUSJON.  385 

CHAPTER    III. 

ACTS  OR  OMISSIONS  OF  THE  PARTIES,  AND  OTHER  PACTS  DONE  OR 
OCCURRING  SUBSEQUENTLY  TO  THE  CONCLUSION  OP  THE  CONTRACT, 
WHICH   AFFECT    THE    RIUHT    TO    A    SPECIFIC    PERFORMANCE. 

Section  313.  In  the  first  chapter  I  discussed  the  nature  of  the 
remedy,  the  extent  of  the  equitable  jurisdiction  in  awarding  it,  the 
grounds  upon  which  it  rests,  and  the  occasions  which  admit  of  its 
employment.  In  the  second  chajiter  I  described  the  nature  and  kinds 
of  contracts  to  which  the  remedy  can  be  applied,  and  the  various 
features  and  incidents  of  such  contracts,  which  are  the  necessary  pre- 
requisites to  their  specific  enforcement.  In  the  present  chapter  it  is 
assumed  that  the  contract  falls  within  the  equitable  jurisdiction  ;  that, 
on  being  concluded,  it  possesses  all  the  features,  elements,  and  inci- 
dents belonging  to  itself,  which  are  essential  to  its  specific  execution ; 
and  I  purpose  to  inquire  what  acts  or  defaults  of  the  parties,  and  what 
facts  or  events  independent  of  the  parties,  done  or  happening  subse- 
quent to  the  time  of  its  conclusion,  will  aff"ect  the  right  to  its  specific 
performance — that  is,  what  subsequent  acts  of  the  parties  are  essential 
to  a  decree  granting  the  relief,  and  what  subsequent  acts,  omissions, 
or  events  will  wholly  or  partially  defeat  the  remedy.  The  discussions 
of  this  chapter,  however,  will  be  confined  to  matters  directly  con- 
nected with  the  agreement  itself  and  its  subject-matter,  including  the 

land  &  Toledo  R.  R.,  13  Ohio  St.  044 ;  Fallon  v.  R.  R.  Co.,  1  Dillon,  121  ;  Ross  v. 
Union  Pacific  R.  R.,  1  Woolw.  26  ;  Green  v.  Smith,  1  Atk.  573  ;  Waring  v.  Man- 
chester, etc.,  Ry.  Co.,  7  Ha.  492;  [Willing-ham  v.  Hooven,  74  Ga.,  233; 
Fargo  V.  N.  Y.  &  N.  E.  R.  Co.,  3  Misc.  Rep.  (N.  Y.)  205,  and  cases  cited; 
Grape  Creek  Coal  Co.  v.  Spellman,  39  111.  App.  630 ;  Campbell  v.  Rust, 
(Va  )  8  S.  E.  664.]  As  examples,  contracts  for  erecting  or  repairing 
buildings,  Beck  v.  Allison,  56  N.  Y.  367  ;  Mastin  v.  Halley,  61  Mo.  196  ;  a 
contract  to  cultivate,  cut,  cure  and  deliver  a  certain  crop  in  a  prescribed  manner, 
Starnes  v.  Newsom,  1  Tenn.  Ch.  239  ;  a  contract  to  construct  a  spout  in  a  water- 
cour.se,  Randall  v.  Latham,  36  Conn.  48.  Bat  in  Columbia  Water,  etc.,  Co.  1\ 
Columbia,  5  S.  C.  235,  a  contract  between  the  company  and  the  city  by  which  the 
former  were  to  construct  certain  extensive  water-works  for  the  city,  was  specifi- 
cally enforced  against  the  city  by  compelling  it  to  accept  them,  etc.,  after  the 
works  had  been  constructed  by  the  plaintiif.  The  doctrine  of  the  text  v^^aa  also 
applied  in  the  cases  of  a  contract  to  transport  all  of  the  plaintiff's  freight,  Atlanta, 
etc.,  R.  R.  -».  Speer,  32  Geo.  550  ;  an  agreement  to  construct  a  fence,  Cincinnati, 
etc.,  R.  R.  V.  Washburn,  25  Ind.  259  ;  an  agreement  to  keep  cattle-guards  ia 
repair,  Columbus,  etc.,  R.  R.  v  Watson,  26  Ind.  50.  [A  contract  for  the  running 
of  horse-cars  will  not  be  enforced ;  the  remedy  is  by  mandamus.  McCann  ■»• 
Nashville  St.  Ry.  Co.,  2  Tenn.  Ch.  773.  A  contract  to  set  up  a  saw-mill  and  see 
that  the  same  shall  cut  a  specified  amount  of  lumber,  Willingham  v.  Hooven,  74 
Ga  233.  A  contract  to  gather  and  transmit  news  by  telegi-aph,  Ir(«n  Age  Pub- 
lishing Co.  V.  Telegraph  Co.,  83  Ala.  498 ;  a  contract  for  the  working  of  mines, 
Wharton  v.  Stoutenburg,  35  N.  J.  Eq.  266.  On  the  other  hand,  the  contract  of  an 
irrigation  company  to  furnish  a  certain  amount  of  water  was  enforced  in  Colorado 
Land,  etc.,  Co.  v.  Adams  (Colo.  App.),  37  Pac.  Rep.  39.] 
398 


386  SPECIFIC    PERFORMANCE    OF  CONTRACTS. 

performance,  by  either  party,  of  tlie  provisions  to  be  performed  on  his 
part,  as  a  condition  to  obtainin^i^  relief  against  the  other;  the  clement 
of  time,  in  connection  Avith  such  performance — that  is,  how  far  a  delay, 
by  either  party,  will  modify  or  defeat  an  enforcement ;  tlie  defect  in 
the  subject-matter  or  in  the  title;  the  failure  of  tlie  consideration; 
the  partial  execution,  with  or  without  compensation,  and  other  similar 
topics.  The  various  matters  which  are  ditectly  connected  with  the 
suit  itself,  the  parties,  pleadings  and  proceedings  in  the  conduct  of 
the  action,  are  reserved  for  another  and  final  chapter. 
Legal  and  equitable  estates  and  interests  ol  vendor  and  vendee. 
Sec.  814.  Before  proceeding  with  the  discussion  thus  outlined,  it 
will  be  well  to  state  a  most  important  principle  of  equity,  which  is  not 
confined,  it  is  true,  to  the  subject  of  specific  performance,  but  upon 
"which,  as  a  foundation,  are  based  a  large  part  of  the  doctrines  and 
Tules  governing  the  nnitual  relations  of  the  two  parties,  and  defitdng 
the  conditions  essential  to  the  remedy  of  specific  performance.  This 
principle,  to  which  I  refer,  is  the  equitable  theory  of  the  interest  and 
estate  in  the  land,  both  of  the  vendor  and  the  vendee,  under  and  by 
virtue  of  a  contract  for  the  sale  of  land.  In  law,  a  contract  for  the 
sale  of  land  is  wholly,  in  every  particular,  executory,  and  produces  no 
effect  upon  the  respective  estates  and  titles  of  the  parties.  The  ven- 
dor remains  to  all  intents  the  owner  of  the  land ;  he  can  convey  it  free 
from  any  legal  claim  or  incumbrance ;  he  can  devise  it ;  on  his  death, 
intestate,  it  descends  to  his  heirs ;  the  contract  in  no  manner  inter- 
feres with  his  legal  right  to,  and  estate  in  the  land ;  and  he  is  simply 
subjected  to  the  legal  duty  of  performing  the  contract,  or  paying  such 
damages  as  a  jury  should  award.  On  the  other  hand,  the  vendee 
acquires  no  interest  whatever  in  the  land  ;  his  right  is  a  mere  thing 
in  action ;  and  his  duty  is  a  debt — au  obligation — to  pay  the  price  ; 
and  on  his  death  both  this  right  and  this  duty  pass  to  his  personal 
representatives,  and  not  to  his  heirs ;  in  short,  he  obtains  at  law  no 
real  property  or  interest  in  real  property ;  the  relations  between  the 
two  parties  are  wholly  personal.  No  change  is  made  until,  by  the 
execution  and  delivery  of  a  deed  of  conveyance,  the  estate  in  the  land 
passes  to  the  vendee.  Equity  views  all  these  relations  from  a  very 
different  stand-point.  In  some  respects,  for  some  purposes,  the  con- 
tract is  executory  in  equity  as  well  as  at  law;  but  so  far  as  the  interest 
or  estate  in  the  land  of  the  two  parties  is  concerned,  it  is  regarded  as 
executed,  and  as  operating  to  transfer  the  estate  from  the  vendor  and 
to  vest  it  in  the  vendee.  This  theory  must  of  necessity  make  a  great 
difference  in  the  respective  rights,  duties,  and  relations  of  the  vendor 
and  vendee.  One  of  the  grand  principles  of  equity — one  of  the  great 
foundation-stones  upon  which  the  whole  sui)erstructure  of  particular 
doctrines  and  rules  is  erected — is  the  proposition :  Equity  regards  and 

b99 


FACTS  SUBSEQUENT  TO    CONCLUSION.  887 

treats  as  done  what,  in  good  conscience,  ought  to  be  done.  This  prin- 
ciple, so  brief  in  its  statement,  is  most  broad  in  its  application,  ai'id 
fruitful  in  its  results ;  from  it,  as  the  root,  spring  a  large  part  of  the 
rules  which  make  n\)  the  body  of  equitable  jurisprudence.  Apply  tlu> 
principle  to  the  present  case.  By  the  terms  of  the  contract,  the  land 
ought  to  be  conveyed  to  the  vendee,  and  the  purchase-money  ought  to 
be  transferred  to  the  vendor ;  equity,  therefore,  regards  these  as  done 
— the  vendee  as  having  acquired  the  property  in  the  land,  and  the 
vendor  as  having  acquired  the  property  in  the  price.  The  vendee  is 
looked  upon  and  treated  as  owner  of  the  land ;  an  equitable  estate 
has  vested  in  him  commensurate  with  that  provided  for  by  the  con- 
tract, whether  in  fee,  for  life,  or  for  years ;  although  the  vendor 
remains  owner  of  the  legal  estate,  he  holds  it  as  a  trustee  for  the  ven- 
dee, to  whom  all  the  beneficial  interest  has  passed.  The  consequences 
of  this  doctrine  are  all  followed  out.  As  the  vendee  has  acquired  the 
full  equitable  estate — although  still  wanting  the  confirmation  for  pur" 
poses  of  security  against  third  persons  of  the  legal  title — he  may  con- 
vey or  incumber  it ;  may  devise  it  by  wdll ;  on  his  death,  intestate,  it 
descends  to  his  heirs,  and  not  to  his  administrators ;  in  this  country, 
his  wife  is  entitled  to  dower  in  it ;  a  specific  performance,  after  his 
death,  is  enforced  by  his  heirs ;  in  short,  all  the  incidents  of 
an  ownership  belong  to  it.  As  the  vendor's  legal  estate  is 
held  by  him  on  a  naked  trust  for  the  vendee,  this  trust  im- 
pressed upon  the  land,  follows  it  in  the  hands  of  other  persons  who 
may  succeed  to  his  legal  title — his  heirs,  and  grantees  w^ho  take  with 
notice  of  the  vendor  s  equitable  right.  In  other  words,  the  vendee's 
equitable  estate  avails  against  the  vendor's  heirs,  devisees  and  grantees 
with  notice  ;  it  is  only  when  the  vendor  has  conveyed  the  land  to  third 
persons,  who  are  bona  fide  purchasers  for  value,  without  notice,  that 
other  equitable  principles  come  into  play,  and  cut  ofi"  the  vendee's 
equitable  title.  It  follows,  also,  as  a  necessary  consequence,  that  the 
vendee  is  entitled  to  any  improvement  or  increment  in  the  value  of 
the  land  after  the  conclusion  of  the  contract,  and  must  himself  bear 
any  and  all  accidental  injuries,  losses,  or  wrongs  done  to  the  soil  by 
the  operations  of  nature,  or  by  tortious  third  persons,  not  acting  under 
the  vendor ;  and,  as  a  general  rule,  the  vendee  is  entitled  to  the  rents, 
profits,  and  products  of  the  land  accruing  after  the  time  when  the 
contract  ought  to  have  been  completed — a  right,  however,  which  does 
not  arise  when  the  delay  in  completion  results  from  his  own  acts  or 
defaults.  The  equitable  interest  of  the  vendor  is  correlative  with  that 
of  the  vendee ;  his  beneficial  interest  in  the  land  is  gone,  and  only 
400 


388  SPECIFIC   FKIiFORMANCE    OF   C0.\TRAC7'S. 

the  naked  legal  title  remains,  which  he  holds  in  trust  for  th<^  vendee. 
He,  however,  is  regarded  as  owner  of  the  pun-lmso-price,  uiid  the 
vendee,  before  actual  }iaynieut,  is  siuii)ly  a  trustee  of  the  iiurchasc- 
nioney  for  him.  Equity  carries  out  tins  doctriut^  to  its  cousequences. 
Although  the  land  remains  in  possession  aud  in  the  legal  ownership  of 
the  vendor,  yet  equity,  iu  aduiiuisteriug,  his  wlude  property  and 
assets,  looks  not  upon  the  larul  as  laud — for  ///(//  lias  gou(;  to  the 
vendee  ;  but  looks  upon  the  money  which  has  taken  the  [ilace  of  the 
land — that  is,  so  far  as  the  laud  is  a  representative  of  the  vendor's 
property,  so  far  as  it  is  an  element  in  his  total  assets,  equity 
treats  it  as  money — as  though  the  exchange  had  actually  been  nnide, 
and  the  vendor  had  received  the  money  and  transferred  the  laud. 
Although  the  legal  title  to  the  land  would  still  descend  to  the  vendor's 
heirs,  still  when  the  vendee  completes  the  contract,  takes  a  convey- 
ance of  the  legal  title  from  the  heirs  aud  pays  the  price,  the  money 
being  all  the  time  a  unit  of  the  vendors  assets,  and  being,  therefore, 
all  the  time  a  part  of  his  personal  and  not  of  his  real  property,  goes 
to  his  executors  or  administrators,  to  be  by  them  administered  upon 
with  the  rest  of  the  personal  assets,  and  does  not  go  to  the  heirs. 
This  doctrine — and  the  present  instance  is  simply  one  application 
of  it  out  of  many — by  which,  from  a  contract  of  sale,  the  land 
bargained  to  be  sold  and  conveyed,  while  remaining  in  the  vendor's 
hands  as  yet  unconveyed,  is  treated  by  equity  as  personal  pro})erty, 
as  a  mere  representative  of  the  money  which  lias  been  promised  in 
consideration  of  its  conveyance,  is  called  the  doctrine  of  equitable 
conversion ;  and  it  is  a  necessary  consequence  of  the  more  fundamental 
principle,  that  by  virtue  of  the  contract  the  vendee  acquires  the  full 
equitable  estate  in  the  land,  the  vendor  holding  it  as  trustee  for  him ; 
while  the  vendor,  in  turn,  acquires  the  equitable  property  in  the 
price,  the  vendee  being  a  trustee  for  him  in  respect  of  such  purchase- 
price.  Instead  of  citing  authorities  iu  sup[)ort  of  each  one  of  the 
particular  rules  stated  iu  the  foregoing  rt.'sume  of  the  ecpiitable  doc- 
trine, I  have  collected  authorities  which  sui)port  the  principle  with 
its  various  results  into  one  note.(l)     With  such  an  effect  given  to  the 

(1)  Champion  v.  Brown,  6  Johns.  Ch.  403  ;  Seaman  v.  Van  Rensselaer,  10  Bai-1). 
86 ;  Won-all  v.  Munn,  38  N.  Y.  139  ;  HuiVman  v.  Hnmmev,  2  C.  E.  Green,  UG3  : 
Brewer  v.  Herbert,  30  Md.  301 ;  Wood  v.  Cone,  7  Paige,  472 ;  "Wood  v.  Keyes,  8 
Paige,  365  ;  Lindsay  v.  Pleasants,  4  Ired.  Ec^.  321 ;  Pratt  v.  Taliafcnv^  3  Leigh, 
410;  Craig  v.  Leslie,  3  Wheat.  563,  577,  578;  Taylor  v.  Benliaia,  5  How.  (U.  S.) 
234;  Yates  v.  Compton,  2  P.  Wnis.  308;  Trelawney  v.  Booth,  2  Atk.  307  ;  Rose  v. 
Cunynghame,  11  Ves.  554  ;  Kirkinan  v.  Miles,  13  Ves.  338 ;  Gi-een  v.  Smith,  1 
Atk.  572,  573 ;  Pollexfen  v.  Moore,  3  Atk.  273 ;  Macki-eth  v.  Syuimoos,  15  Ves. 

401 


FACTS   SUBSKQUKAT  TO    COACLVSTON.  389 

contract  for  the  sale  of  lands,  it  was  inevitable  that  the  particular 
rules  of  equity  concerning  the  carrying  out  aad  enforcement  of  the 
contract  should  be  widely  different  from  those  which  prevail  at  law. 

Effect  of  these  interests  on  their  rights  to  a  performance  of  the 
contract. 

Sec.  315.  If  a  contract  of  sale  vests  the  beneficial  estate  in  the 
purchaser,  and  renders  the  purchase-money  a  fund  already  under  the 
equitable  ownership  of  the  vendor,  it  is  natural  and  indeed  inevitable, 
that  a  strict  performance  of  the  terms  of  the  contract  by  the  plaintiff 
is  not  always  requisite  as  a  condition  precedent  to  his  obtaining  the 
equitable  remedy  of  a  specific  performance.  Herein  lies  the  distinc- 
tion between  the  legal  and  the  equitable  rules  concerning  the  judicial 
enforcement  of  agreements  which  are  in  form  of  the  same  kind,  but 

329,  336 ;  Walker  v.  Preswick,  2  Ves.  622 ;  Ti-immer  v.  Bayne,  9  Ves.  209 ; 
Pulteneyy.  Darling-ton,  1  Bro.  C.  C.  237;  Burg-es-;  v.  Wheate,  1  Elen,  18  5,  194, 
195  ;  Beverly  v.  Peters,  10  Pet.  5)2.  533 ;  Kerr  v.  Day,  2  Harris,  112,  per  Bell,  J. 
(see  op.  quoted  ante) ;  Haugwout  %\  Mui-pliy,  7  C.  E.  Green,  119  ;  8  id.  531  :  '*  In 
equity,  upon  an  ag-reement  for  tlie  sale  of  lands,  the  contract  is  reg-arded,  foi*  most 
purposes,  as  if  specifically  executed.  The  purchaser  becomes  the  equitable  own-er 
of  the  lands,  and  the  vendor  of  the  jiurchase-money.  After  the  conti-act  the 
vendor  is  the  trustee  of  the  legal  estate  for  the  vendee.  Crawford  v.  Bertholf, 
Saxton,  460  ;  Hoagland  v.  Latourette,  1  Green  Ch.  254  ;  Huffman  v.  Hummer,  2  C. 
E.  Green,  264  ;  King  v.  Ruckman,  6  C.  E.  Green,  539.  Before  the  contract  is 
executed  by  conveyance,  the  lands  are  devisable  by  the, vendee,  and  descendible 
to  his  heirs  as  real  estate ;  and  the  personal  representatives  of  the  vendor  are 
entitled  to  the  purchase-money.  Story  Eq.  §^  789,  790,  1212,  1213.  If  the 
vendo)'  should  again  sell  the  estate  of  which,  by  reason  of  the  first  contract,  he  is 
only  seized  in  trust,  he  will  be  considered  as  selling  it  for  the  benefit  of  the 
person  for  whom  by  the  first  contract  he  became  trustee,  and  therefore  liable  to 
account  (2  Spence  Fq.  Jur.  310) ;  or  the  second  purchaser,  if  he  had  notice  at  the 
time  of  his  purchase  of  the  previous  contract,  will  be  compelled  to  convey  the 
property  to  the  first  purchaser.  Hoagland  v.  Latourette,  1  Green  Ch.  254 ; 
Downing  v.  Risley,  2  McCarter,  94.  A.  purchaser  from  a  trustee,  with  notice  of 
the  trust,  stands  in  the  place  of  his  vendor,  and  is  as  much  a  trustee  as  he  was. 
1  Eq.  Cas.  Abr.  384 ;  Story  v.  Lord  Windsor,  2  Atk.  631.  The  cestui  que  trust 
may  follow  the  trust  property  in  the  hands  of  the  purchaser,  or  may  resort  to  the 
purchase-money  as  a  substituted  fund.  Murray  v.  BuUou,  1  Johns.  Ch.  566, 
581.  It  is  upon  the  principle  of  the  transmission  by  the  contract  of  an  actual 
equitable  estate,  and  the  impressing  of  a  trust  upon  the  legal  estate  for  the 
benefit  of  the  vendee,  that  the  docti-ine  of  the  specific  performance  of  contra<?ts 
for  the  sale  and  conveyance  of  land  mainly  depends."  See,  also,  Richter  v. 
Selin,  8  S.  &  R.  425,  440  ;  Robb  v.  Mann,  1  Jones,  300  ;  Siter's  Appeal,  2  Casey, 
178 ;  Phillips  v.  Sylvester,  L.  R.  8  Ch.  173,  176,  per  Lord  Selbornb  ;  Greaves  ■». 
Gamble,  1  Pa.  Leg.  Gaz.  Rep.  1 ;  Lewis  v.  Smith,  9  N.  Y.  502,  510 ;  Moyer  v. 
Hinman,  13  N.  Y.  180 ;  Moore  v.  Burrows,  34  Barb.  173 ;  Adams  v.  Gi-een,  34 
Bai-b.  176  ;  Schroeppel  v.  Hopper,  40  Barb.  425 ;  Thomson  v.  Smith,  63  N.  Y. 
301,  303 ;  [Schmidt  v.  Opie,  33  N.  J.  Eq.  254  ;  Wimbish  v.  Building  Ass'n.  69  Ala. 
575 ;  Hamblen  v.  Folts,  70  Tex.  132  ;  Hartman  v.  Streitz,  17  Neb.  557  ;  Gudgell 
V.  Kitterman,  108  111.  50 ;  Heinlen  v.  Martin,  53  Cal.  321 ;  Bostwick  v.  Beach,  103 
N.  Y.  414  ;  Jones  v.  Jones,  49  Tex.  683 ;  Dail  v.  Freeman,  92  N.  C.  351  ;  Waters 
V.  Bew  (N.  J.  Eq.),  29  Atl.  Rep.  590  (June  25,  1894) ;  Ashurst  v.  Peck  (Ala.),  14 
So.  Rep.  541]. 
402 


!390  SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

which  are,  nevertheless,  by  virtue  of  the  peculiar  doctrines  of  equity, 
substantially  of  different  classes.  This  distinction  may  be  briefly 
summed  up  as  follows  :  Where  a  contract  for  sale  is  strictly  executory, 
so  that  no  property,  estate,  or  interest  in  its  subject-matter  passes 
thereby  to  the  purchaser — and  cannot  pass  except  by  a  performance — 
it  is  an  intiexible  rule  of  the  law  that  the  plaintiff  cannot  maintain 
an  action  for  ihe  purpose  of  enforcing  it  directly  or  indirectly  by 
recovering  damages  for  its  non-perfornumce,  unless  he  perfornuMl,  or 
tendered  performance  of  everything  on  his  part  to  be  done  in  pursu- 
ance of  the  literal  terms  of  the  agreement,  at  the  very  time  and  in 
the  exact  manner  provided  for  by  those  terms ;  and  an  omission  to 
do  so  by  the  plaintiff'  is  not  excused  or  its  effect  obviated  by  showing 
that  it  was  not  due  to  his  own  laches,  neglect,  or  other  default,  or  that 
it  was  not  injurious  to  the  defendant. (1)  This  doctrine,  when  applied 
to  such  contracts,  viz.,  those  purely  executory — which  do  not  operate 
to  create  or  transfer  any  equitable  estate  or  interest — prevails  in  equity 
as  well  as  at  law,  although  its  operation  is,  from  the  effect  of  equitable 
principles,  much  more  limited  and  confined  to  fewer  instances  in 
equity  than  at  the  law. (2) 

Conversely,  whenever  the  contract  is  an  executed  one,  when  it 
operates  as  a  true  sale  and  transfers  the  property  in  the  subject-mat- 
ter to  the  buyer ;  then,  even  at  law,  its  binding  force  is  not  lessened 
because  the  vendor  has  not  delivered  or  offered  to  deliver,  or  the 
buyer  does  not  pay  or  tender  payment  at  the  exact  time  stipulated. 
The  case  of  an  ordinary  sale  of  goods  on  credit  is  an  example.  The 
property  passing  to  the  buyer,  his  failure  to  pay  the  price  at  the  speci- 
fied time,  or  even  his  complete  failure  to  pay,  does  not  avoid  the  agree- 
ment, unless  by  its  express  and  peculiar  provisions  the  obligation  was 
made  to  depend  upon  such  payment,  so  that  a  failure  should  operate 
as  a  rescission. (3)  Now,  a  contract  for  the  sale  of  land,  although 
executory  in  form,  and  always  executory  at  law,  is,  as  w^e  have  seen, 
regarded  in  equity  for  many  purposes — and  for  all  purposes  so  far 
as  the  estates  of  the  parties  are  concerned — as  executed ;  it  passes  a 
property,  an  estate  to  the  vendee,  which  equity  treats  as  the  benefi- 
cial and  substantial  ownership.  It  must,  therefore,  in  equity,  fall 
under  the  second  of  the  above  rules,  and  a  delay  by  the  plaintiff,  or 

(1)  Gath  t).  Lees,  3  Hurlst.  &  Colt.  558  ;  Hoare  v.  Rennie,  5  H.  &  N.  19  ;  Cod- 
dington  v.  Paleolog-o,  L.  R.  2  Exeh.  193;  Russell  v.  Ni(-oll.3  Wend.  112;-McCnl- 
loch  V.  Dawson,  1  Ind.  413;  O'Kane  v  Klser,  25  Ind.  IfJS;  Hill  c.  Fisher.  34  Me. 
143  ;  Shaw  v.  Wilkins,  8  Hiuni)h.  047,  G52  :  Marshall  /).  Powell.  9  Q.  B.  779.  792  ; 
Sansome  v.  Rhodes,  6  Bing.  N.  C.  261 ;  Palmer  v.  Temple,  9  A.  &  E.  50S.  517  ;  B'k 
of  Colnmbia  v.  Hag-ner,  1  Pet.  455. 

(2)  Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  67,  69;  Sug-d.  on  Vendors,  eh.  4.  §  1. 

(3)  Martindale  v.  Smith,  1  Q.  B.  389;  Wilks  v.  Smith,  10  M.  &  W.  360;  Welch 
V.  Moffat,  1  Thomp.  &  C.  575  ;  Edg-arn.  Boies,  11  S.  &  R.  445,  450  ;  Roach  v.  Dick- 
insons. 9  Gratt.  156. 

♦  403 


FACTS  SUBSEQUENT  TO    CONCLUSION.  391 

his  non-fulfillment  of  its  literal  terms,  does  not  prevent  his  enforcement 
of  the  agreement,  unless  sueh  delay  or  non-fulfillment  produces  a  sub- 
stantial loss  or  injury  to  the  other  party  beyond  compensation,  or  the 
equitable  modes  of  compensation. (1) 

The  foregoing  principles  enter  largely  into  the  rules  which  have 
been  established  touching  the  enforcement  of  contracts,  wliich  have 
been  properly  concluded  so  as  to  be  binding  npon  the  parties.  Two 
classes  of  facts  may  possibly  arise  and  affect  the  remedial  right  to  a 
specific  performance,  viz. :  1.  Events  which  happen  without  any 
agency  of  the  ])arties,  independent  of  their  will,  and  beyond  their 
control ;  and  2.  Acts  or  omissions  of  one  or  the  other  of  the  parties 
connected  with,  or  having  reference  to  the  contract.  These  two 
classes  of  facts  w^ill  be  considered  in  the  order  just  given. 

(1)  Kerr  -y.  Day,  2  Harris,  112,  114  ;  Siter's  Appeal,  2  Casey,  178  ;  Sutter's  Heirs 
V.  Ling,  1  Casey,  466  ;  Richter  v.  Selin,  8  S.  &  R.  425,  440  ;  Robb  v.  Maiin,  1  Jones, 
300;  Russell's  Appeal,  3  Harris,  319;  Bowie  v.  Berry,  3  Md.  Ch.  359;  Hunter -w.  Bates,. 
25  Ind.  299  ;  Papin  v.  Massey,  27  Mo.  445,  452;  "Wright  •B.Thompson,  14  Tex.  558. 
The  true  doctrine  of  equity  with  respect  to  the  enforcement  of  contracts  when 
the  plaintiff'  has  not  punctually  complied  with  the  stiiiulations  on  his  part  con- 
cerning the  time  of  his  performance,  and  the  distinction  between  that  doctrine 
and  the  rule  prevailing  at  law,  were  briefly  but  most  admirably  stated  by  Lord 
Cairns,  in  Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  67.  After  giving  the  meaning  and 
effect  of  the  provision  in  question  (whichwas  a  stipulation  that  the  jiossession  of 
the  premises  agreed  to  be  sold  should  be  given  at  a  day  named),  he  says :  "  The 
legal  construction  of  the  contract  is  such  as  I  have  expressed,  and  the  construction 
is  and  must  be  in  equity  the  same  aa  in  a  court  of  law.  A  court  of  equity  will, 
indeed,  relieve  against,  and  enforce  specific  performance,  notwithstanding  a  fail- 
ure to  keep  the  dates  assigned  by  the  contract  for  completion  or  for  the  steps 
towai-ds  completion,  if  it  can  dojtistice  between  the  parties,  and  if  (as  Lord  Justice 
Tdrner  said  in  Roberts  v.  Berry,  3  DeG.  M.  &  G.  284),  there  is  nothing  in  the 
'express  stipulations  between  the  parties,  the  natui-e  of  the  jiroperty,  or  the  sur- 
rounding circumstances,'  which  would  make  it  inequitable  to  interfere  with  and 
modify  the  legal  right.  This  is  what  is  meant,  and  is  all  that  is  meant,  when  it 
is  said  that  hi  equity  time  is  not  of'tlie  essence  of  the  contract."  In  the  same  case 
Sir  John  Rolt,  L.  J.,  said  (p.  69),  after  stating  that  the  construction  must  be  the 
same  in  the  law  and  in  equity  :  "  The  lights  and  remedies  consequent  on  that 
construction  may  be  different  in  the  two  jurisdictions,  but  the  grammatical  mean- 
ing of  the  expression  is  the  same  in  each.  And  if  this  be  so,  time  is  part  of  the 
conti-act ;  and  if  thei-e  is  a  failure  to  perform  within  the  time,  the  contract  is  broken 
in  equity  no  less  than  at  law.  But  in  equity  there  may  be  circumstances  which 
will  induce  the  court  to  give  relief  against  the  breach,  and  sometimes  though  occa- 
sioned by  the  neglect  of  the  suitor  asking  the  relief.  Not  so  at  law.  The  legal 
consequences  of  the  breach  must  there  be  allowed  strictly  to  follow.  The  defend- 
ant is  entitled  to  say  that  the  contract  is  at  an  end  ;  and  it  is  in  this  sense  that,  in 
Buch  cases  it  is  said  that  time  is  of  the  essence  of  the  contract  at  law,  though  not 
necessarily  so  in  equity."  And  see  Lennon  v.  Napper,  2  Sch.  &  Lef.  682,  per  Lord 
Rbdbsdalb  ;  Roberts  v.  Berry,  3  DeG.  M.  &  G.  284,  per  Knight-Brdce,  L.  J. 

404 


892  SFEVIFW  PERFORMANCE   OF  VONARACTS. 


SECTION  I. 

Bvents  without  the  agency  of  the  parties  ;  and  htreinfaUure  of  the  svbjectr 
inatter  m'  of  the  consideration. 

"When  the  equitable  estate  passes  to  the  vendee. 

Section  310.  Whether  a  failure  or  defect  vv  Uepreciution  of  the  sub- 
ject-matter, or  any  other  similar  extrinsic  event,  beyond  the  control 
of  either  party — that  is,  happening  without  the  agency  or  default  of 
a  party — shall  affect  the  right  to  a  spccitic  performance,  depends,  as 
a  general  rule,  upon  the  time  when  it  took  place  with  reference  to  the 
conclusion  of  t)ie  contract ;  or,  in  other  words,  upon  the  fact  of  its 
taking  place  before  or  after  the  contract  was  finally  concluded  so  that 
the  equitable  estate  would  thereby  pass  to  the  vendee.  It  is  neces- 
sary, therefore,  to  determine  with  precision,  in  the  first  place,  tlie  exact 
time  -when  an  agreement  is  regarded  in  equity  as  concluded — 

as  so  concluded  that  the  equitable  ownership  of  the  subject-matter 
vests  in  the  vendee,  and  of  the  purchase-price  in  the  vendor.  In 
determining  this  point,  contracts  must  be  considered  with  reference 
to  the  following  classes,  into  which  they  may  all  be  separated  :  1 .  those 
which  are  private  bargains,  whether  made  by  ordinary  negotiation  or 
by  auction  sale ;  2.  those  which  are  public  sales,  made  by  order  of  a 
court  in  the  course  and  as  a  part  of  some  judicial  proceeding  ;  and  8. 
those  belonging  to  either  of  the  former  two  classes,  which  are  condi- 
tional— the  obligation  of  them  depending  upon  the  happening  of  some 
condition — in  opposition  to  those  which  are  absolute  in  their  terms. 

Private,  absolute  sales. 

Sec.  317.  In  case  of  private  contracts  for  the  sale  or  leasing  of 
land,  or  of  any  estate  therein,  the  time  of  their  conclusion,  at 
which  the  equitable  interests  of  the  parties  are  fixed,  is  that  of 
signing  the  agreement,  or  the  note,  or  memorandum  thereof  in  writ- 
ing, provided  the  vendor's  or  lessor's  title  is  good,  although  such  title 
is  not  made  out  and  shown  until  afterwards.  The  contract  then 
becomes  binding,  and  the  subsequent  exhibition  of  his  title  by  the 
vendor  relates  back  to  the  date  of  the  execution.(l)     It  can  make  no 

(1)  Harford  v.  Purriei-,  1  Mad.  538,  i)f*r  Sir  Thomas  Plumer  :  "  It  is  the  estab- 
lished doctrine  of  equity  that,  if  a  contract  of  pin-chase  is  to  be  completed  at  a 
given  period,  and  the  title  is  finally  made  out,  the  parties  continuing-  in  treaty, 
and  the  inirchaser  not  by  any  acts  released  from  his  barg-ain,  the  estate  is  con- 
sidered as  belonging  to  the  purchaser  from  the  date  of  the  contract,  and  the 
money  as  from  that  time  belonging  to  the  vendor."  Pierce  v.  Nichols,  1  Paige, 
244;  Baldwin  v  Salter,  8  Paige,  473  ;  7  Paige,  78;  Seymour  t'.  Delancey,  3  Cow. 
44(5  ;  Richter  v.  Selin,  8  Serg.  &  R.  425,  440 ;  Robb  v.  Mann,  1  Jones,  300,  per 
Rogers,  J.  405 


EVENTS    WITHOUT  THE  AGENCY  OF  THE  PARTIES.  393 

diflference  whether  such  sale  is  the  result  of  an  ordinary  uegotiatioiiy 
or  is  made  at  auction.  In  the  latter  case,  the  contract  may  be  com- 
pleted by  the  signing  of  the  memorandum  by  the  auctioneer  or  his 
clerk,  as  the  agent  of  both  parties.  There  are,  however,  a  few  older 
authorities  which  seem  to  hold  ihat  the  time  which  thus  fixes  the 
rights  of  the  parties,  is  not  the  date  of  executing  the  contract,  but 
that  of  accepting  the  title  by  the  purchaser — in  other  words,  that  the 
contract  does  not  become  binding  and  operative,  so  as  to  pass  the 
equitable  estate,  until  the  title  has  been  thus  accepted. (1)  This  rule 
is,  however,  plainly  erroneous.  Of  course,  the  contract  fails — or,  to 
speak  more  accurately,  this  contract  never  was  really  made — if  it  turns 
out  that  the  vendor  had  no  title  ;  but  if  he  has  a  title,  the  establish- 
ment of  this  fact,  and  the  acceptance  thereof  by  the  vendee,  relate 
back,  and  the  interests  of  the  two  parties  are  fixed  as  from  the  date 
of  the  instrument. 

Sales  by  order  of  court. 

Sec.  318.  By  the  equity  practice  an  interval  is  allowed  after 
the  sale  and  before  it  is  finally  confirmed,  during  which  the  bid- 
ding may  be  reopened  and  a  resale  directed  for  various  causes. 
The  question  is  thus  presented :  Whether  the  fixing  the  rights  and 
interests  of  the  parties  dates  from  the  sale  itself  or  from  the  order  of 
confirmation,  or  whatever  other  act  the  practice  has  substituted  in 
place  of  such  order  ?  The  rule  which  seems  to  be  sustained  by  the 
weight  of  authority,  pronounces  the  rights  and  estate  of  the  parties  to 
be  settled  at  the  date  of  the  sale,  subject,  of  course,  to  be  defeated  by 
an  order  for  opening  the  bids  and  reselling  the  subject-matter ;  the 
confirmation  thus  relates  back  to  that  time. (2)  According  to  some 
authorities,  or  at  least  dicta,  the  time  at  which  the  equitable  interests 
of  the  parties  are  established,  and  when  the  purchaser  is  to  be  con- 
sidered as  owner  of  the  estate,  is  the  date  of  the  order  confirming  the 

(1)  Wyvill  V.  Bishop  of  Exetei-,  1  Pi-ice,  292,  295,  n. ;  Paine  v.  Meller,  6  Vesey, 
349; 

(2)  By  this  rule  the  sale  is  the  point  of  division  between  events  before  and 
events  after  the  contract,  althoug-h  the  vendee  can  do  nothing-  with  the  property 
until  such  sale  has  been  confirmed.  Vesey  v.  Elwood,  3  Dr.  &  War.  74,  per  Lord 
St.  Leonards  ;  Anson  v.  Towg-ood,  1  J.  &  W.  637,  per  Lord  Eldon.  In  Robb  v. 
Mann,  1  Jones,  300,  the  question  was  directly  presented.  (See  facts  and  opinion, 
ante.)  Rogers,  J.,  said  :  "The  question  is  to  whom  the  property  belonged  in  the 
intermediate  time  between  the  sale  and  its  contirmation  by  the  court ;"  and  it  was 
decided  that  it  belonged  to  the  vendee,  and  that  the  loss  then  occurring  fell  on 
him,  although  he  had  no  power  to  prevent  the  wrong  done — the  tortious  acts  by 
the  trespassers.  See,  also,  Stoever  ii.  Rice,  3  Whart.  25  ;  Bashore  v.  Whisler,  3 
Watts,  494  ;  Morrison  v.  Wurtz,  7  Watts,  437  ;  Andrews  v.  Scottou,  2  Bland. 
(Md.),  629. 

406 


39 1  SPECIFIC    PERFORMASCE    OF  CONTRACTS. 

order  of  sale,  or  of  whatever  other  judicial  act  the  practice  substitutes 
in  place  of  such  order. (1) 

Conditional  contracts. 

yjic.  310.  The  rule  is  different  in  the  case  of  a  contract  conditional  in 
its  very  nature.  The  equitable  interests  or  estates  of  the  parties  are 
not  fixed  at  the  conclusion  of  the  ag-reeuient,  but  by  the  happening  of 
the  condition  which  renders  the  contract  absolute.  Until  the  contract 
is  thus  changed  from  a  conditional  into  an  absolute  one,  the  estate  in 
the  subject-matter  does  not  pass  to  the  vendee,  but  remains  in  the 
vendor,  and  the  subject-matter  itself  continues  to  be  at  his  risk. (2) 

Failure  of  subject-matter  of  the  contract. 

Sec.  820.  As  the  time  when  the  equitable  estate  vests  in  the  pur- 
chaser is  that  which  lixes  the  rights  of  the  parties  under  the  contract, 
all  events  which  affect  the  subject-matter,  and  whicli  inay  modify  the 
interests  and  obligations  of  the  parties,  must  be  referred  to  this  point 
of  time,  as  occurring  either  before  or  afrer  it.  Events  hai)pening 
before  this  point  of  lime,  which  either  destroy  the  subject-matter  or 
materially  injure  it,  which  defeat  or  materially  lessen  the  estate 
agreed  to  be  transferred,  will,  as  has  already  been  shown,  defeat  a 
specific  performance,  since  their  real  effect  is  to  prevent  a  valid  con- 
tract, in  its  very  inception,  from  being  made.  If  these  prior  events 
affect  the  subject-matter,  or  the  estate  to  be  transferred,  but  not  sub- 
stantially or  materially,  they  niay  not,  as  has  been  shown  in  previous 
sections,  constitute  a  complete  defense  to  a  specific  enforcement  of  the 
contract,  but  nuiy  only  furnish  ground  for  a  compensation. (8)  The 
general  rule  has  been  applied  to  a  contract  for  the  sale  of  a  reniainder 
in  fee  after  an  estate  tail,  where  it  turned  out  that  the  tenant  in  tail 
had  suffered  a  recovery,  and  thus  cut  off  the  remainder  ;(4)  and  to 
contracts  concerning  chattels  or  personal  property  which,  even  at  law, 

(1)  Robertson  v.  Skelton,  12  Beav.  2G0,  265,  per  Lord  Langdalk  ;  and  see,  also, 
Paramore  v.  Greenslade,  1  Sm.  &  Gif.  541  ;  Busey  v.  Hardin,  2  B.  Monr.  407  ; 
Owen  V.  Owen,  5  Humph.  352. 

(2)  Counter  v.  McPherson,  5  Moo.  P.  C.  C.  83.  Owners  agreed  to  lease  for  live 
years  from  April  1,  1840,  they  stipulating-  to  ereot  a  new  warehouse  on  the 
ground  and  to  repair  the  old  one  before  that  date,  the  rent  to  depend  upon  the 
amount  thus  expended.  April  1st  arrived  and  the  improvements  had  not  been 
made,  but  the  intended  lessees  did  not  object,  but  continued  to  occupy  a  part  of 
the  iiremises  under  an  old  contract.  Shoi-tly  after  all  the  buildings  were  desti-oyed 
by  fire.  The  owners  sued  for  a  specific  jierformance,  and  it  was  held  by  the  P.  C. 
that  the  contract  was  conditional  ;  the  agi-eement  was  to  sell  or  lease  upon  the 
completion  of  the  buildings,  and  imtil  they  were  completed  the  risk  was  upon  the 
vendor.  [Allyn  ■».  AUyn,  154  Mass.  570.  There  was  a  iirovisiou'iii  the  contract 
respecting  the  destruction  of  the  buildings  by  fire,  viz.,  that  they  were  to  be 
insured  for  the  benefit  of  the  vendee.  It  was  held  that  the  happening  of  that 
event  could  furnish  no  excuse  to  either  party  for  refusing  to  carry  out  the  agree- 
ment.    Chappell  V.  McKnight,  108  111.  570 ;  cf.  Haven  v.  Beidler,  40  Mich.  28b"l. 

(3)  See  section  on  "  Compensation,"  j)ost. 

(4)  Hitchcock  v.  Giddings,  4  Price,  135. 

407 


EVENTS    WITHOUT  THE  AGENCY   OF  THE   PARTIES  395 

require  that  the  thing  should  he  in  existence  at  the  time  the  agree- 
ment is  made,  so  that  if  tlie  article  or  property  has  ceased  to  exist,  no 
valid  agreement  arises. (1) 

Sec.  321.  Thisdoctrine,  as  to  the  effect  of  a  failure  in  the  subject-matter, 
applies,  under  some  circumstances,  to  a  failure  of  the  consideration, 
but  it  is  important  to  observe  with  accuracy  the  extent  and  limits  of 
sucli  application.  Whenever  the  consideration  is  money,  or  a  promise 
to  pay  money,  there  cannot,  by  any  possibility,  be  a  failure  of  the 
consideration,  in  the  sense  in  which  the  subject-matter /a?7s;  because, 
although  the  money  may  not  be  paid  according  to  the  stipulation,  the 
liability  to  pay  it  always  remains,  and  constitutes  a  consideration.  It 
is  true  that  a  purchaser  who  has  not  paid,  or  tendered  or  offered  to 
pay  the  price,  as  stipulated,  may  not  be  able  to  enforce  the  contract 
against  the  vendor,  but  his  inability  in  such  case  would  not  result 
from  any  '•'•failure'''  of  the  consideration,  but  from  his  neglect  to  per- 
form what  was  to  be  done  on  his  part  as  a  condition  precedent  to  his 
obtaining  relief  against  the  vendor.  It  is  possible,  however,  that 
there  should  be  a  true  failure  of  consideration,  although  even  then 
the  failure  will  be  in  the  "  subject-matter" of  the  agreement,  as  made 
by  one  of  the  parties.  If  the  consideration  of  A.'s  promise  to  con- 
vey or  to  do  some  other  act,  was  a  promise  by  B.  to  convey  land,  or  a 
designated  estate  in  land,  or  certain  personal  property,  and  it  should 
turn  out  that  at  the  time  of  making  the  contract  the  land  or  the 
personal  property  which  B.  undertook  to  convey  had  no  existence,  or 
he  had  no  estate  in  it  which  he  could  transfer,  then,  regarding  the 
agreement  as  a  promise  made  by  A.,  the  consideration  would  have 
failed  ;  but  regarding  it  as  a  promise  made  by  B.,  the  subject-mat- 
ter would  have  failed,  and  in  either  mode  of  looking  upon  it,  the 
failure  would  prevent  B.  from  obtaining  its  specific  enforcement.  To 
this  extent,  and  no  further,  a  failure  of  the  consideration  being  iden- 
tical with  a  failure  of  the  subject-matter,  will  prevent  the  specific 
execution  of  a  contract,  because  in  reality  it  prevents  the  contract  from 
having  any  valid  inception.  If  such  a  failure  of  the  consideration, 
or  inability  of  one  party  to  do  the  acts  which  formed  the  considera- 

(1)  It  is,  of  course,  assumed  that  the  contract  purports  to  ojierate  in  praesenti, 
and  with  reference  to  an  existing  chattel  or  thing  in  action.  The  rule  does  not 
apply  to  agi-eements  which  ]mrport  to  operate  in  futuro,  and  with  reference  to 
things  not  in  esse  hnt  in  posse — as,  for  example,  an  expected  crop  of  grain.  In 
illustration  of  the  rule  stated  in  the  text,  see  Strickland  v.  Turner,  7  Exch.  208 
(sale  of  a  life  annuity,  the  person  on  whose  life  it  depended  having  died)  ; 
Couturier  v.  Hastie,  9  Exch.  102;  5  H.  L.  Cas.  673  (sale  of  a  cargo  afloat,  which 
had  been  lost). 

4U8 


39t)  SPKCIHC   J'hh'FOh'MASCE    OF   COyTKACTS. 

tion  for  the  engagement  of  the  other  party,  should  happen  after  the 
time  at  wliich  tlie  agTeoniout  was  coucliided  and  tlie  interests  of  the 
two  parties  were  tixod,  and  sliould  operate  to  prevent  the  {tarty  who 
had  thus  undertaken  to  do  the  acts,  from  specifically  enforcing  the  con- 
tract against  tlie  other,  the  remedy  in  such  a  case  would  be  denied, 
not  because  the  consideration  or  the  subject-matter  had  failed,  but 
because  the  one  seeking  relief  had  not  performed  or  offered  perform- 
ance, and  was  not  ready  to  perform  what  was  to  be  done  by  him  as  a 
condition  precedent  to  his  obtaining  tlie  equitable  remedy. (1) 

Sec.  322.  The  effect  of  events  occurring  after  the  point  of  time 
which  fixes  the  interests  of  the  parties  is  wholly  different  from  that  of 
prior  events.  At  that  period,  although  the  contract  is  executory  in 
form,  and  is  treated  as  wholly  executory  at  law,  the  equitable  benefi- 
cial estate  in  the  subject-nuitter  passes  to  the  jiurchaser,  and  he 
becomes  in  contemplation  of  equity  the  real  owner.  He,  therefore, 
takes  the  benefit  of  all  subsequent  improvements,  increases,  gains, 
rises  in  value,  and  other  advantages  happening  to  the  property.  On 
the  other  hand,  the  subject-matter  is  at  his  risk,  and  he  must  bear 
all  losses,  total  or  partial,  from  fire  or  other  accidental  causes,  or  from 
trespassers,  and  all  depreciations  in  value,  and  other  disadvantages; 
res  peritdowino.  But  the  latter  proposition  is  subject  to  a  most  impor- 
tant modification,  viz.,  that  the  loss  or  depi-cciation  does  not  happen 
from  the  neglect,  default,  or  unwan-antable  delay  of  the  vendor  in 
caiTying  out  the  contract.(2) 

(1)  See,  as  illustrations,  Jacox  v.  Clarke,  Walk.  Ch.  508 ;  Morrill  v.  Aden,  19  Vt. 
505  ;  Baker  v  Thompson,  16  Ohio,  504  ;  Selby  v.  Hutchinson,  4  Gilni.  319.  Foi- 
an  example  of  failure  of  the  consideration  j)i'eventing-  a  specific  performance,  see 
Butnian  v  Porter,  100  Mass.  337  ;  and  see  many  cases  cited  in  the  two  follow- 
ing sections. 

(2)  As  the  vendee  bears  these  losses,  unless  the  vendoi-  is  responsible  for  them, 
it  follows  that  the  losses,  or  the  events,  chancre  in  circumstances,  or  accidents  which 
cause  them,  do  not  avail  to  prevent  the  specific  enforcement  of  the  contract  against 
him,  any  more  than  the  gains  or  events  which  cause  them  prevent  a  specific 
enfoi'cenient  against  the  vendor.  The  following  are  examples  :  Destruction  by 
lire  of  the  houses  sohl  does  not  enable  the  vendee  to  resist  a  specific  perfoi'niance. 
Paine  v.  Meller,  6  Ves.  349  ;  and  see  Ciiss  t>.  Rudele,  2  Vern.  280,  and  1  Bro.  C.  C. 
156,  n.  An  agreement  to  sell  in  consideration  of  a  life  annuity  is  not  prevented 
from  enforcement  by  the  death  of  the  one  on  whose  life  tlie  annuity  is  payable — 
the  annuitant — even  before  any  payment  is  due.  Mortimer  v.  Capper,  1  Bi-o.  C. 
C.  156  ;  Jackson  v.  Lever,  8  Bro.  C.  C.  60.^.  Money  having  been  left  to  be  laid 
out  in  land,  and  the  land  to  be  settled  on  A.  in  tail,  with  ivinaindcr  t<i  15.  in  fee^ 
A.  and  B.  agreed  to  divide  th(?  money  l)etween  them  ;  but  before  this  agreement 
was  carried  out  or  any  division  actually  maile.  A.  died  without  issue — a  specific 
performance  was  enforced  against  B..  although  according  to  the  original  nri-ange- 
nient  B.  would  have  then  been  entitled  to  the  whole.     Carter  v.  Carter,  Forrest, 

409 


EVENTS    WITHOUT  THE  AGENCY  OF  THE  PARTIES.  397 

The  doctrine  is  fully  supported  by  the  American  decisions,  that 
the  purchaser  must  sustain  any  loss  happening  to  the  subject-mat- 
ter between  the  date  of  concluding  the  agreement  and  that  of  the 
conveyance  ;  and,  on  the  other  hand,  is  entitled  to  any  increase  or 
gain  which  may  arise  during  the  same  period. (1)  Thus,  where  a 
manufactory  had  been  sold  at  auction  by  order  of  the  court,  and 
between  the  sale  and  the  confirmation  thereof,  the  machinery  and 
fixtures  were  carried  oif  by  trespassers,  the  purchaser  was  still  com- 
pelled to  specifically  perform  his  agreement. (2)  A  rise  in  value  of 
the  subject-matter,  between  the  contract  and  the  carrying  into  effect, 
resulting  from  a  change  in  circumstances  or  discoveries,  and  the  like, 
enures  to  the  benefit  of  the  purchaser,  and  is  no  ground  for  the 
vendor's  refusing  to  perform,  it  being  understood,  of  course,  that  the 
agreement  was  fair  in  its  inception,  without  any  fraud,  or  any  feature 
which  equity  calls  mistake  ;(3)  nor  will  a  fall  in  the  value,  even 
though  sudden  and  unforeseen,  enable  the  vendee  to  resist  a  specific 
execution  at  the  suit  of  the  vendor. (4)  The  same  rule  would  apply  if 
the  consideration  should  depreciate  in  value  and  become  practically 
worthless  subsequent  to  the  conclusion  of  the  contract,  either  before  or 
after  it  was  actually  paid  over  or  transferred  to  the  vendor.  This 
has  been  illustrated  by  recent  cases  growing  out  of  contracts  for  sale 
where  the  payment  was  made  or  to  be  made  in  confederate  notes.  In 
one  instance,  a  contract  was  made  during  the  war  for  the  sale  of  land 
for  §6,000,  payment  to  be  made  in  that  currency.  The  land  w^as 
worth  that  amount,  and  continued  unchanged  in  value.  Tlie  purchaser 
was  prompt  in  tendering  payment  according  to  the  terms  of  the  con- 
tract, but  the  notes  were  then  worth  oidy  §385  of  the  United  States 
currency.  As  no  delay  of  the  vendee  had  exposed  the  vendor  to  this 
collapse  in  the  consideration,  it  was  held  that  the  change  in  the  value  of 

271.  A  trader  agreed  to  take  two  persons  into  partnership  for  a  term  of  18  years, 
and  in  consideration  thereof  they  ag-reed  to  pay  him  a  certain  sum  in  installments  ;, 
before  ail  the  installments  were  paid  he  became  a  bankrupt,  and,  of  course,  the 
partnership  was  dissolved  ;  but  his  assignees  were  held  entitled  to  enforce  payment 
of  the  i-emaining  installments.  Akhuivst  v.  Jackson,  1  Sw.  85,  and  see  Coles  v.  Tre- 
cothick,  9  Ves.  246,  pei*  Lord  Eldon. 

(1)  Richter  v.  Selin,  8  S.  &  R.  425,  440,  per  Duncan,  J.  ;  Greaves  v.  Gamble,  1 
Pa.  Leg.  Gaz.  Rep.  1 ;  [Walker  v.  Owen,  79  Uo.  5(53 ;  Wetzler  v.  Duffy  (Wis.),  47 
N.  W.  Rep.  184  ;  cf.  Schuessler  v.  Hatchett,  58  Ala.  181 ;  Smith  v.  Phisnix  Ins. 
Co.,  91  Cal.  323]. 

(2)  Robb  V.  Mann,  1  Jones,  300. 

(3)  Lee  v.  Kirby,  104  Mass.  420,  428  ;  Ewing  v.  Beauchamp,  6  B.  Mon.  422 ; 
Andrews  v.  Bell,  6  P.  F.  Smith,  343  ;  Willai-d  v.  Tayloe,  8  Wall.  558,  571,  per 
Field,  J. 

(4)  Marble  Co.  v.  Ripley,  10  Wall.  337  ;  Cooper  v.  Pena,  21  Cal.  403  ;  Andrews 
v.  Bell,  6  P.  F.  Smith,  343,  350. 

410 


i 


398  SPECIFIC  FEUFORMAyCE   OF  CONTRACTS. 

the  consideration  constitutiMl  no  defense  to  ;in  enforcement  against  the 
vendor  ;(1)  and  in  similar  contracts,  payments  having  been  made  and 
accepted  of  confederate  notes  dnring  the  \var,  the  vendors  were  com- 
pelled to  perform  by  conveying  after  the  war,  althongh  the  notes  had 
become  absolutely  worthless. (2)  But  both  of  these  rules  must  be  taken 
•with  an  important  limitation,  as  follows  :  If  the  loss,  or  depreciation 
in  value,  occurs  during  a  delay  in  carrying  the  contract  into  effect, 
which  is  caused  by  the  vendors  own  laches,  default,  inability  to  make 
title,  and  the  like,  then  the  ])urchaser  does  not  bear  such  loss  or 
depreciation,  but  is  excused  from  performance. (;^)  Also,  if  the  depreci- 
ation or  extinction  of  the  consideration  occurs  during  a  period  of 
waiting,  caused  by  the  vendv^e's  delay  or  neglect  or  inability  to  com- 
ply with  the  stipulations  on  his  part,  then  such  loss  does  not  fall  upon 
the  vendor,  but  constitutes  a  sufficient  defense  to  a  specific  perform- 
ance against  him.(4)  In  pursuance  of  the  general  doctrine,  if  the 
subject-matter  is  destroyed  V>y  fire,  after  the  time  when  the  contract 
by  its  conclusion  fixes  the  rights  of  the  parties,  the  purchaser  is  still 
liable  to  a  specific  performance,  unless,  as  last  above  stated,  the 
casualty  occurred  during  the  period  of  the  vendor's  laches  and  delays, 
or  was  the  result  of  his  default. (5) 

In  some  early  cases  the  doctrine  under  discussion  was  not  acted 
upon,  and  the  failure  of  the  subject-matter  or  of  the  consideration  was 
treated  as  a  sufficient  grouni  for  refusing  a  decree  of  specific  perform- 

(1)  Hale  V.  Wilkinson,  21  Gratt.  75,  per  Moncdre,  J.  :  "We  must  carry  our- 
selves back  to  the  date  of  the  contract.  If  at  that  time  the  consideration  would 
have  been  deemed  adequate,  if  tiie  court  would  then  have  decreed  a  specific  exe- 
cution of  the  contract,  the  conclusion  is  inevitable  that  the  consideration  must  now 
be  deemed  adequate,  and  the  court  must  now  decree  such  execution." 

(2)  Ambrouse  t).  Keller,  22'{xratt.  769;  and  see  Booten  v.  Scheftei-,  21  Gratt. 
474,  494. 

(3)  Wyvill  V.  Bp.  of  Exeter,  1  Price,  294  ;  Paine  v.  Meller,  6  Ves.  349  ;  Christian 
«.  Cabell,  22  Gratt.  82.  In  the  last  case  the  vendor  was  delayed  in  completing- 
by  the  difficulty  in  removing  an  inCuinbi'ance,  the  amount  of  which  was  in  dis- 
pute, and  in  the  meantime  the  building-s  were  burned  up,  and  the  vendee  was 
held  to  be  freed  from  the  obligation  of  a  specific  performance.  In  Griffin  v. 
Cunningham,  19  Gratt.  571,  the  vendor  was  delayed  in  making  title  to  about  one- 
sixth  of  the  land  by  the  loss  of  a  deed,  which  was  not  found  until  a  long  time  had 
elapsed,  and  in  the  meantime  the  pi-operty  greatly  depreciated  in  value,  and  this 
was  held  to  discharge  the  vendee. 

(4)  In  Booten  v.  Scheffer,  21  Gi-att.  474,  the  vendee  delayed  completing  on  his 
part  until  the  notes  which  he  had  agreed  to  give  as  jmyment  were  greatly  depi-e- 
ciated,  and  a  specific  i)eT-formance  was  refused  against  the  vendor  ;  and  see,  also, 
Merritt  v.  Brown,  4  C.  E.  Green,  28(5  ;  Westerman  v.  Means,  2  Jones,  97  ;  Kirby 
*,  Harrison,  2  Ohio  St.  326. 

(5)  Brewer  v.  Herbert,  30  Md.  301.     S«e  Gates  v.  Green,  4  Paige,  355. 

411 


PERFORMANCE  BY  PLAINTIFF.  S99 

auce.  These  cases,  although  decided  by  judges  of  high  authority,  do 
not  represent  the  equitable  rules  on  the  subject  which  have  since  been 
established  by  uji  unbroken  course  of  adjudication. (1) 


SECTION   II. 


Performance  by  the  plaintiff  a  condition  precedent  to  his  enforcing  per^ 
formance  upon  the  defendcmt. 

Section  323.  It  is  the  fundamental  doctrine  upon  which  the  specific 
enforcement  of  contracts  in  equity  depends,  that  either  of  the  parties 
seeking  to  obtain  the  equitable  remedy  against  the  other  must,  as  a 
condition  precedent  to  the  existence  of  his  remedial  right,  show  that 
he  has  done  or  offered  to  do,  or  is  then  ready  and  willing  to  do,  all 
the  essential  and  material  acts  required  of  him  by  the  agreement  at 
the  time  of  commencing  the  suit,  and  also  that  he  is  ready  and  willing 
to  do  all  such  acts  as  shall  be  required  of  him  in  the  specific  execution 
of  the  contract  according  to  its  terras.  In  the  language  of  many 
cases,  the  plaintiff  must  show  himself  "  ready,  willing,  desirous, 
prompt,  and  eager."  There  are,  it  is  true,  two  apparent  exceptions 
to,  but  in  reality  only  modifications  of  this  rule,  which  will  be  dis- 
cussed at  large  in  subsequent  sections,  namely,  1,  that  a  strict  per- 
formance at  the  very  time  stipulated  is  not  generally  essential;  and 
2,  partial,  immaterial  defects  of  the  subject-matter  or  failures  of  title, 
when  admitting  of  compensation,  may  not  prevent  the  vendor,  plain- 
tiff, from  enforcing  the  remaining  part  of  the  agreement.  Even  in 
these  instances,  there  is  no  real  departure  from  the  rule ;  where  a 
delay  is  permitted,  it  does  not  render  a  performance  some  time  at  or 
before  the  suit,  any  the  less  necessary ;  and  the  defects  or  failures  in 
the  subject-matter  or  title  of  the  vendor  must  be  so  partial,  immate- 
rial, and  formal,  that  the  substance  of  the  contract,  and  all  its  really 
essential  terras,  can  be  and  are  carried  into  effect  by  the  plaintiff. 

(1)  Davy  «.  Barber,  2  Atk.  489,  per  Lord  Hardwickk  ;  Stent  v.  Bailis,  2  P. 
Wnis.  217  ;  Pope  v.  Roots,  1  Bro.  P.  C.  370.  Fur  cases  involving  a  peculiar  con- 
dition of  circumstances  which  have  sometimes  arisen  in  England,  whei-e  the  per- 
formance of  an  agreement  to  give  a  lease  for  years  was  possible  at  the  eommence- 
rnent  of  the  suit,  but  became  impossible,  so  as  to  confer  any  interest  on  the 
plaintiff,  by  the  mere  efflux  of  time  befoi-e  the  suit  was  terminated  by  a  decree. 
See  Nesbit  v.  Meyer,  1  Sw.  233  ;  "Walters  v.  Noi-thoi-n  Coal  Mining  Co.,  5  DeG.  M. 
&  G,  620.  639;  Hoyle  •?).  Livesey,  1  Meriv.  381;  Wilkinson  v.  Torkington,  2  Y. 
&  C.  Ex.  72(5,  72S  ;  Keuney  v.  Wexham,  6  M;id.  3").'). 
412 


400  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

The  general  doctrine,  therefore,  remains  true,  that  tlie  party  who,  as 
actor,  calls  upon  a  court  of  equity  for  its  specilic  relief,  must  show  that 
he  has  complied,  or  has  offered  to  comply,  oris  then  ready  and  willini,'- 
to  comply  with  the  }irovisions  of  the  agreement  in  respect  to  what 
ought  to  have  been  done  by  him,  and  that  he  is  ready  and  willing  to 
conn)ly  with  the  ])rovisions  in  res})ect  to  what  lie  will  be  required  to 
do  in  the  future. (1)  In  accordance  with  this  doctrine,  it  is  a  faniiliiir 
rule,  that  the  vendor,  as  plaintiff,  cannot  /enforce  a  speciiic  perform- 
ance upon  the  purchaser,' unless  he  is  able  to  give  a  good  title  to  the 
subject-matter  which  he  has  contracted  to  convey  (2)  In  the  treat- 
ment of  this  general  doctrine,  I  shall  consider,  1,  the  ])laintiil"s  duty 
to  comply  with  all  the  terms  of  the  contract  np^u  Ids  own  part,  as  a 
prerequisite  or  condition  to  his  obtaining  equitable  relief;  and  shall 
add,  2,  some  remarks  concerning  the  inter})retatiou  of  jirovisions 
which  frequently  occur  in  such  agreements,  when  tlie  obligation  of 
the  parties  may  depend  u^ion  the  interpretation. 

The  plaintiff's  duty  to  comply  -with  the  provisions  en  his  pait. 
I.  The  general  doctrine  applicable  to  either  party  ^when 
plaintiSl 

Sec.  324.  First.  A  contract  may  contain  provisions  requiring  acts  to  be 
done  by  the  plaintitf  at  or  before  the  time  when  he  institutes  the  suit, 
acts  which  are  the  conditions  precedent  to  any  remedial  right  arising  in 

(1)  Lloyd  V.  Collett,  4  Bi-o.  C.  C.  469 ;  4  Ves.  600,  n.  ;  Harring-ton  v.  Wheeler, 
4  Ves.  686  ;  Guest  v.  Homfray,  5  Ves.  818  ;  Alley  v.  Deseham]is,  13  Ves.  225  ; 
Walker  v.  Jeffreys,  1  Hare,  352 ;  Southcomb  v.  13ishop  of  Exeter.  6  Hare,  213, 
218;  Dorin  v,  Harvey,  \')  Sim.  49  ;  Alloway  v.  Braine,  26  Beav.  ^^1') ;  Sharp  v. 
Wright,  28  Beav.  150 ;  McMurray  v.  Spicer,  L.  R.  5  Eq.  527,  537 ;  Eai-1  of  Dam- 
ley  v.  London,  etc.,  R"y  Co.,  3  Do  G.  J.  &  S.  24 ;  Wood  v.  Perry,  1  Barb,  114; 
Vail  V.  Nelson,  4  Rand.  478 ;  Secrest  v.  McKenna,  1  Strol).  E(|.  3.")6  ;  Tvler  ■j^. 
McCardle,  9  S.  &  M.  230 ;  Stewart  v.  Raymond  R.  R.,  7  S.  &  M.  568 ;  Richai-dson 
V.  Linney,  7  B.  Mon.  571  ;  Colson  ^■).  Thompson,  2  'Wheat.  336  ;  Watts  v.  Waddle, 
6  Pet.  389  ;  Boone  v.  Mo.  Iron  Co.,  17  How.  (U.  S.)  340 ;  McNeil  v.  Mag-ee,  5  Mason, 
244 ;  Long^vorth  v.  Taylor,  1  McLean,  39.") ;  Siillin;>-3  v.  Sulling-s,  9  Allen,  234  ; 
Earl  V.  Halsey,  1  McCarter,  332;  Thorp  v.  Pettit,  1  C.  E.  Green,  488;  Buchanan 
V.  Lorman,  3  Gill.  77  ;  Breckenridg-e  v.  Clinckinbcard,  2  Littell,  127 ;  McCulIoch 
V.  Dawson,  1  Ind.  413 ;  O'Kano  v.  Kiser,  25  Ind.  168  ;  Brown  t'.  Hayes,  33  Geo. 
(Supp.)  136  ;  Crane  v.  Decamp,  6  C.  E.  Green,  414  ;  Walker  v.  Hill,  ib.  191 ;  Mer- 
ritt  V.  iii-own,  ih.  401 ;  Rogers  v.  Taylor,  40  Iowa,  193  ;  Burling-  v.  King-,  66  Bai-l). 
633;  Blackmer  v.  Phillips,  67  N.  C.  340';  Long-  v.  Ilartwell,  34  N.  J.  L.  116  ;  Allen 
V.  Atkinson,  21  Mich.  351  ;  King-  v.  Ruckman,  21  N.  J.  Eq.  599  ;  Van  Camixm  v. 
Knig-ht,  63  Barb.  205 ;  Reeves  v.  Kimball,  40  N.  Y.  299 ;  McComas  v.  Easlcy,  21 
Gratt.  23  ;  [Frixen  v.  Castro,  5S  C.-il.  442  ;  Chadbourne  v.  Stockton  Sav.  &  Loan 
Soc,  88  Cal.  636 ;  Ludlum  v.  Buckingham,  39  N.  J.  Eq.  503 ;  Rice  v.  D'Arville 
(Mass.),  39  N.  E.  Rep.  ISO  (Jan.  2, 1895) ;  Potter  v.  Couch,  141  U.  S.  290  ;  Leicester 
Piano  Co.  ■?'.  Front  Royal  &  Ri  vert  on  Imp.  Co.  (C.  C.  A.),  55  Fed.  Rep.  190  ; 
Brush-Swan  Electric  Lig-ht  Co.  v  Bru.sh  Electric  Co.,  52  Fed.  Rep.,  37,  2  C.  C.  A. 
669,  1  U.  S.  App.  563 ;  Wilson  v.  Union  Sav.  A.ss'n,  42  Fed.  Rep.  421 ;  Weing-aert- 
ner  v.  Pabst,  115  111.  412  ;  Letsey  r.  Whittemore,  111  111.  267  ;  Penn-j\  McCullough 
(Md.),  24  A.  424  (June  8,  1S92) ;  Mavg-er  v.  Cruse,  5  Mont.  485,  497;  Wilson  v. 
Lineburg-er,  92  N.  C.  547  ;  Burnnp  r.  Sidberrv,  108  N.  C.  307;  Bodw(>ll  v.  Bod- 
well  (Vt.),  23  A.  870;  Clay  r.  Deskins  (W.  Va."),  15  S.  E.  85  (April  2,  1892) ;  Vaw- 
ter  I).  Bacon,  89  Ind.  565;  Pensac^la  Gas  Co.  v.  Pensacola,  33  Fla.  322.  Sp(>cilic, 
performance  is  not  refused  be(-,ause  the  iilaintiff  does  not  a\er  a  willingniesa  to  ]iay, 
an  accounting-  being-  d(>manded  to  determine  the  amount  due  ;  Rust  t\  Strickland 
(Colo.  App.)  ,  28  Pacific  Rep.  141  ;  Coolbaugh  n  Roemer,  32  Minn.  445.  Mere 
non-payment  on  the  part  of  the  ]ilaiiiti{f,  in  the  absence  of  laches,  is  not  a  default ; 
Dcrrett  i'.  Bowm.-m,  61  Md.  526.] 

(2)  King-7\  Knapp,  59  N.  Y.  462;  Hoover  v.  Calhoun.  16  Gratt.  109;  Jack.son 
V.  Ligon,  3  Leig-h,  161 ;  McKean  v.  Reed,  6  Litt(-ll,  395 ;  Brv;in  v.  Re.-ul,  1  Dev.  k. 
Bat.  Ch.  78;  Reed  v.  Noe,  9  Venr.  283;  Cinnnni,-h:im  v.  sii;ii-]>,  11  llnnqih.  116, 
121  ;  Buchanan  v.  Alwell,  8  Humph.  51;;  ;  nepbiu-n  v.  Auld.  5  (^i-.-nidi.  262. 

413 


PERFORMANCE  BY  PLAINTIFF.  401 

his  favor ;  as,  for  example,  the  vendor's  making  a  good  title  before  he 
can  force  the  purchaser  to  accept  a  conveyance,  and  the  vendee's  pay- 
ment or  tender  of  the  price  before  he  can  compel  a  conveyance.  There 
may  also  be  other  promissory  provisions  of  the  contract  which  speak 
of  acts  to  he  done  by  the  plaintiff  after  the  commencement  of  the  suit, 
avid,  as  is  usually  the  case,  in  the  process  of,  or  as  a  part  of,  the  final 
specific  execution  of  the  agreement ;  as,  for  example,  in  a  contract  to 
give  a  lease,  there  may  be  stipulations  describing  the  covenants  to  be 
inserted  in  the  instrument.  The  former  class  of  provisions,  which  are 
by  far  the  most  frequent  and  important,  will  be  first  examined. 

Substantial  performance  sufficient. 

Sec.  325.  In  appreciating  the  force  of  the  general  doctrine  stated 
at  the  commencement  of  this  section,  it  must  be  constantly  remem- 
bered that  equity  looks  to  and  insists  upon  a  substantial  as  contrasted 
with  a  literal  performance,  and  to  that  end  discriminates  between  the 
terms  of  a  contract  which  embody  its  substance,  which  are  essential 
or  material,  and  which  must  be  performed  by  the  plaintiff,  and  those 
which  are  non-essential,  immaterial,  formal,  the  non-permonnance  of 
which  by  the  plaintiff  does  not  prevent  him  from  enforcing  the  obli- 
gation of  the  other  party,  although  it  may  render  him  liable  to  make 
compensation  for  the  default  as  an  incident  of  the  relief  which  he 
obtains.  As  has  been  shown  in  Chapter  I,  a  plaintiff  may  sometimes 
be  able  to  enforce  the  specific  performance  of  his  agreement  in  equity, 
when  and  indeed  because  he  cannot  maintain  an  action  upon  it  at 
law  by  reason  of  his  failure  or  inability  to  make  a  literal,  exact  com- 
pliance with  all  the  terms  upon  his  own  part.  From  this  equitable 
theory  of  a  substantial  performance  are  derived  all  the  subordinate 
and  special  rules  which  permit  a  vendor  to  perfect  his  title  after  the 
time  for  completion ;  which  admit  of  delay  in  closing  the  stipulated 
acts ;  and  which  even  allow  absolute  failures  in  collateral,  immaterial 
matters  when  they  can  be  remedied  by  compensation. (1)     Whenever, 

(1)  Lord  V.  Stephens,  1  Y.  &  C.  Exch.  222,  is  an  example  of  the  equitable 
notion  of  a  substantial  compliance  being*  sufHcient.  A  vendor  contracted  to  sell 
land,  and  also  in  the  same  contract  he  agi'eed  to  be  tenant  from  year  to  year  of 
the  vendee  in  i-espect  of  the  same  land.  This  latter  stijiulation  the  vendor  was 
prevented,  by  his  pecuniary  necessities,  from  fulfiling-.  On  his  suit  to  enforce  a 
specific  pei'formance  against  the  vendee,  it  was  held  that  as  this  stipulation  did 
not  go  to  the  substance  of  the  bargain,  and  as  the  tenancy  itself  was  so  precarious, 
subject  to  be  ended  by  a  notice  from  either  party,  the  breach  of  it  was,  therefore, 
immaterial,  and  should  not  defeat  a  specific  enforcement  by  the  vendor.  See, 
also,  Davis  v.  Hone,  2  Sch.  &  Lef.  347,  per  Lord  Redesdalb  :  *'  A  court  of  equity 
frequently  decrees  specific  performance  when  the  action  at  law  has  been  lost  by 
the  default  of  the  very  party  seeking  the  specific  performance,  if  it  be,  notwith- 
standing,  conscientious  that  the  agi^eement  should  .be  performed,   as  in  cases 

414 


40:2  SPECIFIC  PKh'FORMAXCE    OF   COXTRACTS. 

theroforo,  the  whole  agreement  made  between  tlie  parties  at  tlie  saifte 
time  and  coiicerninir  the  same  .subject-matter  is  divisible,  and  con- 
tains in  addition  to  the  main  j)art  of  the  c»)ntr;u't  a  separate,  incidental 
or  collateral  stipulation,  the  non-performance  of  sudi  separable  col- 
lateral provision  by  the  plaintiff",  will  not  Idmler  liim  from  specifi- 
cally enforcing^  the  other  and  essential  ]»ortion,  provided,  always,  that 
the  main  fact  is  not,  by  the  terms  of  the  whole  contract,  necessarily 
dependent  upon  the  minor  sti[)ulation, 'in  a  manner  analogons  to 
covenants  or  promises  niutually  dependent  We  have  seen  in  the 
preceding  chapter,  (Section  XVII,  that  where  the  contract  is  separable 
the  inability  t)f  the  defendant  to  i)erform  the  whole  may  not  itrcvent 
the  plaintiif  from  com})elling  an  execution  of  the  part  which  is  within 
the  defendant's  cajjacity;  the  same  rule  applies  to  the  case  of  the 
|)laintift"  who  is  unable  to  perform  a  separat.(^,  independent,  collateral 
and  incidental  i)art  of  his  agreement,  and  is  still  p(n-mitted  to  enforce 
against  the  defendant  the  specific  performance  of  his  obligation.(l) 

Tender,  -when  excused. 

Sec.  326.  Although  the  i)laintiff  must  in  general  show  an  actual 
performance  on  his  own  part,  or  else  a  tender  or  offer  of  ])erformance, 
yet  such  tender  or  offer  is  sometimes  unnecessary,  and  a  readiness 
and  willingness  to  perform  is  sufiicient.  The  necessity  of  a  tender  is 
•obviated,  and  the  readiness  and  willingness  supply  its  place,  when- 

•\vhere  the  terms  of  the  agreement  have  not  been  strictly  performed  on  the  part 
<if  the  person  seeking-  specific  performance  ;  and  to  sustain  an  action  at  law  per- 
formance must  be  averred  according  to  the  very  terms  of  the  contract.  Nothing- 
but  si)ecific  execution  of  the  contract,  so  far  as  it  can  be  executed,  will  do  justice 
in  such  a  case."  Lennon  v.  Napper,  2  Sch.  &  Lef.  6S4  ;  Parkin  v.  Thorohl,  2 
Sim.  (N.  S.)  6,  8  ;  Roberts  v.  Berry,  3  DeG.  M.  &  G.  284,  239  ;  Oxford  v.  Pi-ovand. 
L.  R.  2  P.  C.  135  ;  Ogdeu  v.  Fossick,  4  DeG.  F.  &  J.  42 J  ;  Geivais  v.  Edwards,  2 
Dr.  &i  War.  80  ;  Stocker  v.  Wedderburn,  3  K  &  J  393.  [See  Donner  v.  Reden- 
baugh,  61  la.  2G9.] 

(1)  Gibson  v.  Goldsniid,  5  DeG.  M.  &  G.  757;  reversing  S.  C,  18  Beav.  584  ; 
Green  v.  Low,  22  Beav.  (325.  In  the  latter  of  these  cases  the  owner  of  land  agreed 
with  A.  that  A.  shouhi  erect  a  dwelling  on  the  lot,  and  should  keep  it  insured  in 
a,  specified  company  in  their  joint  names,  and  as  soon  as  the  house  was  finished 
the  ownei-  should  give  A.  a  lease,  and  if  A.  should  not  fulfill  on  his  jmrt  the 
agreement  for  the  lease  should  be  void  ;  and  it  was  also  provided  that  A.  should 
have  the  option  of  buying  the  jiremises  in  fee  within  two  years.  A.  finished  the 
house,  insured  it  in  a  diftei-ent  company  and  in  his  own  name,  and  sued  to  com- 
pel a  conveyance  under  the  option.  Held,  that  the  stipulation  as  to  leasing  wsis 
independent  of  that  as  to  buying,  and  plaintifTs  failure  to  comply  with  his  agree- 
ments concerning  the  former  part  of  the  whole  contract  could  not  prevent  him 
from  enforcing  the  latter  portion,  and  so  a  decree  for  a  specific  performance  was 
gi-anted.  For  fui-ther  cases  of  such  divisible  conti-acts,  see  Wilkinson  v.  Clem- 
ents. L.  R.  8  Ch.  96  ;  Flanagan  v.  Great  Western  R'y  Co..  L.  R.  7  K(i.  116  ;  Stew- 
art V.  Metcalf,  68  III.  109  :  Portland,  etc..  R.  R.  v.  Grand  Trunk  R.  R.,  63  Me.  90 ; 
McComas  v.  Easfey,  21  Graft  23  ;  Van  Orman  v.  Merrill,  27  Iowa,  476.  [See,  also, 
Chadwell  v  Winston,  3  Tenn.  Ch.  1 10  ;  Gi-igg  v.  Landis,  21  N.  J.  Imj.  494  ;  Power 
V.  Bagley  (Wash  ),  38  Pac.  Rep.  164  (Oct.  24,  1894)  ;  and  so,  if  the  contract  is  in 
the  nature  of  additional  security  for  the  iierfoi-mance  of  the  principal  contract ; 
Simms  v.  Knight,  71  Ala.  197  ;  an<l  where  there  was  a  lease  with  the  privilege  of 
purchase,  the  payment  of  rent  was  not  prerequisite  to  the  exercise  of  the  oi)tion  ; 
Gradle  v.  Warner,  (111.),  29  N.  E.  Rep.  1118.  For  instance  of  indivisible  contract. 
Bee  Hill  v  Rich  Hill  Min.  Co.  (Mo.),  24  S.  W.  Rep.  223.] 

415 


PERFORytAACE   BY  PLAINTIFF.  403 

ever  the  case  shows,  either  in  the  allegatiuus  or  the  evidence,  that  if 
a  tender  had  been  made  it  would  have  been  refused  by  the  defend- 
ant ;(1)  or  shows  that  the  defendant  had,  by  his  own  acts  or  omissions, 
made  it  impossible  for  him  to  accept  the  plaintiff's  offer,  and  to  fulfill 
his  own  part  of  the  agreement. (2)  Under  such  circumstances,  equity 
does  uot  require  the  empty  shov^  of  a  tender.  When  an  executory 
contract  has  been  made  with  a  deceased  ancestor,  the  infant  heir  to 
whom  the  land  devolves  subject  to  the  agreement  cannot  set  up  his 
own  incapacity  to  act  as  an  excuse  for  not  performing  the  stipulations 
which  are  binding  upon  him  as  successor  of  the  deceased  ancestor, 
where  a  performance  of  such  stipulations  is  necessary  to  protect  the 
party  from  loss. (3) 

Impossibility  of  performance  by  the  plainti£El 

Sec.  327.  If  for  any  cause,  even  arising  after  the  contract  is 
concluded,  it  becomes  wholly  impossible  for  the  plaintiff  to  per- 
form any  part  of  the  contract  on  his  part,  he  cannot,  as  a  matter 
of  course,  enforce  a  performance  against  the  defendant.  This 
result,  if  due  to  events  happening  after  the  agreement  was  en- 
tered into,  does  not  arise  from  the  notion  of  a  failure  of  con- 
sideration, since,  as  has  been  shown,  the  equitable  ownership  is 
transferred  at  the  time  when  the  contract  is  concluded,  and  the  pro- 
perty is  then  at  the  risk  of  the  equitable  owner,  but  it  arises  from  the 
fact  that  the  plaintiff  is  unable  to  do  any  of  the  matters  and  things 
which  were  to  be  done  by  him  as  a  condition  to  his  calling  upon  the 
other  party  for  a  performance. (4)  If,  however,  the  impossibility 
extends  only  to  a  part  of  the  contract,  and  that  anon-essential,  formal 
part — or,  in  other  words,  if  the  impossibility  is  merely  of  a  perform- 
ance according  to  the  exact,  literal  terms,  while  a  substantial  com- 
pliance is  left  within  the  plaintiff's  power — the  plaintiff's  remedy  is 

(1)  Hunter  v.  Daniel,  4  Hare,  420  ;  and  see  the  following  cases  at  law  :  Seaward  v 
Willock,  5  East,  202  ;  Poole  v.  Hill,  6  M.  &  W.  835 ;  Wilmot  v.  Wilkinson,  6  B.  & 
C.  506 ;  Lovelock  v.  Franklyn,  8  Q.  B.  371  ;  Doogood  v.  Rose,  9  C.  B.  131. 

(2)  Hotham  v.  East  India  Co.^  \  T.  R.  638  ;  Stewart  v.  Raymond  R.  R.,  7  S.  & 
M.  5G8  ;  Tyler  v.  McCardle,  9  S  &  M  230  ;  Kerby  n  Harrison,  2  Ohio  St.  326  | 
\_2wst,  §§  360-863.     See,  also,  Sellick  v  Tallman,  87  N.  Y   106.] 

(3)  Griffin  v.  Griffin,  1  Sch.  &  Lef.  352 

(4)  When  a  vendor  has  made  a  conti-act  to  convey  a  tract  of  land  on  which  are 
buildings,  the  accidental  destruction  of  the  buildings  by  fire,  for  example,  does 
not  hinder  him  from  enforcing  a  performance  upon  the  pui-chaser,  since  he  can 
still  convey  the  land,  and  the  property  was,  from  the  dale  of  the  conti-act,  at  the 
purchaser's  risk,  res  peril  domino.  But  if  it  could  be  conceived  that  not  only  the 
buildings  but  the  very  land  itself  should  be  destroyed,  then  the  vendor  could  not 
enforce  a  performance,  since  he  would  be  unable  to  convey  anything — that  is, 
would  be  unable  to  comply  with  his  own  pai  t  of  the  agreement  to  any  extent. 
Virtually,  the  case  is  the  same  when  the  vendor's  title  to  the  subject-matter 
■wholly  fails. 

416 


404  SFECIFIC    l'KUF(>i;MA.\<'h:    OF   (■<K\T/i'AcrS. 

not  thereby  necessarily  defeated.  When  the  dei'imlt  will  achnit.  «if  a 
compensation,  and  the  contract  whicli  the  jtarties  have  actually  iiuah^ 
can  be  carried  into  effect  according  to  its  suUstantial,  essential  provi- 
sions, without  the  virtual  substitution  of  another  in  its  stead,  the 
plaintiff  may  obtain  a  decree  of  specific  performance  with  or  without 
compensation,  as  the  equity  .of  the  case  demands. (1)  There  is  still  a 
third  case.  If  the  contract  is  divisible,  the  parts  not  being  so 
mutually  dependent  that  the  performance  of  one  is  a  necessary  pre- 
requisite to  the  performance  of  the  other,  and  the  plaintiff  performs 
one  of  these  parts,  and  the  other  part  becomes  impossible  without  his 
fanlt  from  causes  not  under  his  control,  then  if  by  such  partial  per- 
formance he  is  left  in  statu  quo,  he  is  not  entitled  to  a  specific  enforce- 
ment of  the  agreement  against  the  defendant ;  but  if,  on  the  other 
hand,  by  means  of  such  partial  performance  the  plaintiff  is  not  left  in 
statu  quo — or,  in  other  words,  if  he  has  thereby  so  changed  his  former 
condition  that  he  cannot  be  restored  to  it  again— he  is  entitled  to  a 
specific  execution  of  the  contract  by  the  other  party,  and  equity  will 
grant  him  that  relief. (2) 

Exception  in  relation  to  the  performance  of  marriage  con- 
tracts. 

Sec.  328.  Marriage  contracts  constitute,  in  some  respects,  an  excep- 
tion to  the  general  doctrine  that  a  plaintiff"  seeking  a  specific  enforcement 
to  the  general  doctrine  that  a  plaintiff  seeking  a  specific  enforcement 
must  show  a  performance  of  the  terms  on  his  own  part.  These  agree- 
ments, in  their  ordinary  form,  are  made  for  the  benefit  of  two  classes 
of  persons,  the  spouses  who  are  the  actual  contracting  parties,  and  who 
receive  the  immediate  but  generally  teni})orary  benefit,  and  the  issue 
of  the  marriage  not  in  being  at  the  time  of  their  conclusion,  who 
receive  their  ultimate  and  generally  permanent  advantage.  With 
respect  to  the  former  class — the  actual  parties — th(^se  marriage  con- 
tracts are  governed  by  the  general  doctrine  which  has  already  been 
stated.  Neither  the  husband  nor  the  wife,  nor  any  other  of  the 
original  parties,  can  enforce  a  specific  performance,  unless  they  have 
complied  with  the  stipulations  on  their  own  part.  But  with  the  issue 
it  is  otherwise.    They  are  intended  to  be  benefited  by  the  settlement ; 

(1)  Counter  v.  Macpherson,  5  Moo.  P.  ('.  C.  83,  108,  and  see,  po.sf,  tin-  sfction  on 
"  Compensation." 

(2)  The  rule  making-  this  distinction  hetween  the  phuntitF  s  r-hanu'inu'"  or  not 
chang-ing'  his  former  leg-al  condition  by  nutans  of  his  own  partial  pt'i-tnmiance, 
and  the  effect  of  such  a  chang-e  upon  his  rig-ht  to  the  equitable  remcily,  is  laid 
down  by  Ch.  Baron  Gilbkkt  in  his  "  Xea;  Prwtm-ia,"  pp.  240,  242,  and  has  bc(^u 
approved  by  subsequent  authorities.  See  Story  Eq.  Jur.  §  772  ;  Breckenridge  v. 
Clinkinbeard,  2  Litt.  127 ;  Hays  v.  Hall,  4  Porter,  374  ;  McCorkle  v.  Brown,  9  S. 
&  Mar.  167. 

417 


PERFORMANCE  BY  PLAINTIFF.  405 

and,  in  fact,  are  usually  the  persons  to  whom  the  property  is  finally 
and  absolutely  given.  They  have  no  power  nor  capacity  with  respect 
to  carrying  into  effect  the  terms  of  the  agreement ;  and  while  they 
are  thus  the  ultimate  beneficiaries,  and  are  unable  to  perform  the  pro- 
visions, it  would  bo  wholly  inequitable  if  their  rights  could  be  cut  off 
by  the  omissions  or  defaults  of  other  persons  over  whose  acts  they  have 
no  control.  It  is,  therefore,  w^ell  settled,  that  wdiile  the  innnediate 
parties  must  show  a  performance  on  their  own  part  as  a  condition  pre- 
cedent to  an  enforcement  of  a  marriage  contract  against  others,  the 
issue  may  compel  a  specific  execution  of  the  agreement  in  their  own 
favor,  although  the  persons  who  were  their  predecessors,  and  the 
actual  contracting  parties,  have  not  complied  with  the  terms  on  their 
own  part — have  not  fully  done  what  by  those  terms,  they  w^ere  bound 
to  do.(l) 

Sec.  329.  This  special  rule  concerning  marriage  settlements  is,  of 
course,  of  far  more  practical  importance  in  England,  where  they  are 
the  almost  universal  incidents  of  marriage  among  persons  possessing 
property,  than  in  the  United  States,  where,  although  not  absolutely 
unknown,  they  are  comparatively  very  infrequent.  I  shall,  therefore, 
not  dwell  upon  the  subject,  but  merely  state,  in  the  briefest  manner, 
the  restrictions  and  limitations  u^Don  the  rule  which  hav^  been  estab- 
lished by  the  English  decisions.  1.  The  provisions  of  a  marriage 
contract  may  be  so  drawn  as  to  take  it  out  of  the  rule  by  expressly 
requiring  performance  on  the  part  of  the  plaintiff,  even  when  the 
enforcement  is  asked  by  the  children.     If  such  an  intention  is  suffi- 

(1)  Lloyd  V.  Lloyd,  2  Myl.  &  Cr.  204,  per  Lord  Cottenham  ;  Harvey  v.  Ashley, 
3  Atk.  611,  per  Lord  Hardwicke.  "  There  is  a  difference  between  agreements  on 
marriage  being  carried  into  execution  and  other  agreements  ;  for  all  agreements 
besides  are  considered  as  entire,  and  if  either  of  the  parties  fail  in  performance 
of  the  agreement  in  part,  it  cannot  be  decreed  in  specie,  but  must  be  left  to  an 
action  at  law.  In  marriage  agreements  it  is  otherwise  ;  for  though  either  the 
relations  of  the  husband  or  wife  should  fail  in  the  performance  of  their  pai-t,  yet 
the  children  may  compel  a  performance.  If  the  mother's  father,  for  instance, 
hath  agreed  to  give  a  portion,  and  the  husband's  father  hath  agi-eed  to  make  a 
settlement,  though  the  mother's  father  does  not  give  the  portion,  yet  the  children 
may  compel  a  settlement ;  for  a  non-performance  on  one  pai-t  shall  be  no  imiaedi- 
ment  to  the  children  rei^eiving  the  full  benefit  of  the  settlement ;  so  if  there  be  a 
failure  on  the  part  of  the  fathei-'s  relatives,  it  is  the  same."  In  Perkins  v.  Thorn- 
ton, Ambl.  .502,  the  heirs  of  a  husband  were  compelled  to  settle  a  jointure  which 
he  had  agreed  to  settle,  although  the  husband  had  not  received  the  portion 
which  the  wife's  father  had  contracted  to  pay.  See,  also,  Hancock  v.  Hancock, 
2  Vem.  605  ;  North  v.  Ansell,  2  P.  Wms.  618  ;  Pyke  u  Pyke,  1  Ves.  Sen.  376 ' 
Ramsden  v.  Hylton,  2  Ves.  Sen.  304  ;  Campbell  v.  Ingilby,  21  Beav.  567 ;  26  L.  J. 

iJh.  654.  .^„ 

418 


406  SPECIFIC   PKKhOUMAyCE   OF  CONTRACTS. 

ciently  expressed  in  tlie  iustrimieut,  it.  iiiiist,  of  course,  control. (1) 
2.  Neither  the  contracting  party  who  is  in  default,  nor  persons  claiui- 
iiig  under  him  as  assignees,  can  compel  a  specific  performance  of  the 
agreement.(2)  3.  Mere  collateral  relatives,  who  are  not  included 
within  the  scope  of  the  marriage  contract,  cannot  compel  a  i)erform- 
anco  of  it  by  the  husband,  whenever,  by  reason  of  subsequent  events 
or  change  of  circumstances,  the  provisions  for  acts  to  be  done  on  the 
part  of  the  wife  have  not  been  or  cannot  be  complied  with. (3) 

Future  terms. 

feJEC  330,  The  party  seeking  aid  of  the  court  as  actor — generally 
the  plaintiff — must  not  only  show  that  he  has  complied  with  the 
terms,  so  f;  r  as  they  can  and  ought  to  be  complied  with,  at  the  com- 
mencemei  t  of  the  suit ;  he  must  also  show  that  he  is  able,  ready  and 
-willing  to  do  those  other  future  acts  which  the  contract  stipulates 
for  as  a  part  of  its  specific  performance.  These  future  acts  are 
generally  covenants  agreed  to  be  inserted  in  the  leases,  and  other 
deeds  of  conveyance,  which  the  contract  provides  for,  and  the  per- 
formance of  such  covenants ;  for  the  insertion  of  covenants  in  a  deed 
is  a  very  easy  matter,  but  would  be  a  very  useless  form  if  the 
covenantor  was  wholly  unable,  through  bankruptcy,  insolvency,  and 
the  like,  to  perform  them. 

Sec.  331.  It  is  a  general  rule  that  when  a  specific  performance  is 
obtained  against  trustees,  and  persons  who  have  contracted  in  a 
fiduciary  capacity  analogous  to  that  of  trusteeship,  and  they  are 
required  as  a  part  of  the  specific  execution  to  enter  into  covenants,  they 
are  not  obliged  to  give  covenants  which  bind  themselves  personally, 
but  it  is  sufficient  if  the  property  is  thereby  bound.(4)  This  may 
not   be   the  case   where   trustees  are   plaintiffs.     If,  for  example, 

(1)  Lloyd  V.  Lloyd,  2  My.  &  Cr.  192,  204. 

(2)  Mitford  v.  Mitfoi-d,  9  Ves.  87,  96 ;  Bnsevi  v.  Serra,  14  Ves.  313  ;  Corsbie  v. 
Free,  Cr.  &  Ph.  64,  74,  per  Lord  Chan.  Cottenham  ;  as,  for  example,  in  Crofton 
V.  Ormsby,  2  Sch.  &  Lef.  602,  603,  the  woman  agreed  to  settle  an  estate  for  the 
benefit  of  her  husband,  and  the  husband  in  turn  agreed  to  settle  for  the  benefit 
of  the  wife  ;  and  she  failed  to  fulfill  on  her  part.  Lord  Redesdale  said  :  "  That 
might  be  a  case  in  which  the  wife  should  not  be  allowed  to  have  the  benefit  of  the 
husband's  contracts  ;  but  that  would  not  affect  the  children  ;  they  must  have  the 
estate." 

(3)  The  distinction  is  here  between  the  rights  of  direct  issue  of  the  marriage 
and  of  mere  collaterals,  and  is  illustrated  by  the  cases  of  Ravill  v.  Savill,  2  Coll. 
C.  C.  721,  and  Campbell  v.  Ingilby,  21  Beav.  579. 

(4)  Page  V.  Broom,  3  Beav.  36 ;  Phillips  x\  Everai-d,  5  Sim.  102  ;  Stephens  v. 
Hotham,  1  K.  &  J.  571  ;  Worley  v.  Frampton,  6  Hai-e,  560  ;  On.slow  v.  Lord 
Londesborough,  10  Hare,  67  ;  Copper  Mining  Co.  v.  Beach,  13  Beav.  478 ;  Hodges 
V.  Blagrave,  18  Beav.  404 ;  Hare  v.  Burges,  4  K.  &  J.  45. 

419 


PERFORMANCE  BY  PLAINTIFF.  407 

a  person  makes  a  contract,  the  execution  of  wliich  requires  covenants 
on  his  part,  and  then  becomes  a  bankrupt,  his  assignees  cannot,  as 
plaintiifs,  compel  a  specilic  performance  by  the  other  party,  unless 
they  will  personally  enter  into  the  covenants  stipulated  for  by  the 
agreement.(l)  The  effect  of  banki'uptcy  of  a  party  upon  the  contract 
must  depend,  in  a  great  measure,  upon  the  legislation  of  particular 
countries.  In  England  bankruptcy  does  not  necessarily  annul  the 
contract  for  the  sale  or  lease  of  lands.  The  assignees  of  a  bankrupt 
vendor  or  lessor  may  compel  performance  by  personally  entering 
themselves  into  all  the  covenants  which  their  principal  would  have 
made;(2)  and  by  a  recent  English  statute  the  vendors  or  lessors 
may  call  upon  the  assignees  of  a  bankrupt  lessee  to  elect  whether 
they  will  carry  out  the  contract  or  regard  it  as  annulled. (3)  If 
a  party  to  a  contract  commits  an  act  of  bankruptcy,  so  that 
he  is  liable  to  be  adjudicated  a  bankrupt  therefor,  he  cannot,  while 
such  liability  lasts,  enforce  the  agreement  either  as  vendor  or  as 
vendee. (i) 

Sec.  3o2.  On  the  same  principle  the  general  insolvency  of  a  party 
might  prevent  him  as  plaintiff  from  enforcing  a  contract  into  which 
he  had  entered ;  it  would  certainly  have  this  effect  if  he  was  required, 
by  the  contract,  to  pay  money  or  to  enter  into  covenants  for  such  pay- 
ment. (5)  Where  a  contract  has  been  assigned  by  one  of  its  parties, 
the  insolvency  of  the  assignor  would  be  no  ground  for  refusing  a 
specific  performance  against  the  other  contracting  party,  but  the 
insolvency  of  the  assignee  might  be  a  defense. (6)  If  one  party  should 
commit  a  felony,  he  would  be  unable,  as  plaintiff,  to  enforce  the  agree- 
ment. (7)  In  England  the  loss  or  accidental  destruction  of  his  title- 
deeds  may  prevent  a  vendor  from  compelling  the  piu'chaser  to  specifi-- 

(1)  Ex  Parte  Sutton.  2  Rose,  86  ;  Wittingham  v.  Joyce,  3  Ves.  168 ;  Powell  v. 
Lloyd,  2  Y.  &  J.  372;  Weathei-all  v.  Geering,  12  Ves.  513. 

(2)  Brooke  v.  Hewitt,  3  Ves.  253,  and  see  cases  in  last  preceding  note. 

(3)  11  and  12  Vict.  Ch.  106,  §  146. 

(4)  Not  as  vendor,  since  he  cannot  give  a  perfect  title  to  the  property — such 
title  may  vest  in  his  assignees  (Lowes  v.  Lush,  14  Ves.  547) — and  not  as  vendee, 
because  he  can't  give  a  good  title  to  the  purchase-price  ;  his  assignees  might 
recover  it  back  from  the  vendors.     Franklin  v.  Lord  Brownlow,  14  Ves.  550. 

(5)  Crosbie  v.  Tooke,  1  My.  &  K.  431 ;  Price  v.  Assheton,  1  Y.  &  C.  Exch.  441 ; 
for  example,  an  intended  lessee  could  not  compel  the  execiitinn  of  the  lease  since 
his  insolvency  would  prevent  him  from  paying  the  rent  as  stipulated  for.  Neale 
V.  Mackenzie,  1  Keen,  474 ;  Willingham  v.  Joyce,  3  Ves.  168  ;  Buckland  v.  Hall,  S 
Ves.  92.     rSeew  also,  McFarlane  v.  Williams.  107  111.  33.] 

(6)  Crosbie  ■».  Tooke,  1  My.  &  K.  431. 

(7)  Willingham  v.  Joyce,  3  Ves.  168. 

420 


408  Sl'KCIFIC    I'KRt'OKMASCK    OF   CO MK ACTS. 

cally  perform  a  contract  of  sale,  but  the  reasons  for  this  rule  liave  no 
existence  whatever  in  the  United  iStates.(l) 

Performcince  of  representations. 

8kc.  olio.  Thus  far  it  has  been  shown  that  the  plaintiff  must,  iu 
general,  perform,  or  be  ready  to  perforin,  all  of  the  thrills  of  the  con- 
tract— all  of  the  stipulations  which  make  a  part  of  the  agreement — 
which  provide  for  acts  or  omissions  by  him ;  but  the  doctrine  goes 
farther  than  this,  and  embraces  the  promissory  representations  made 
by  him  at  or  before  the  time  of  concluding  the  contract,  and  in  reliance 
upon  which  the  defendant  entered  into  the  agreement.  He  must, 
therefore,  perform  the  terms  which  constitute  the  contract  itself,  and 
also  his  representations  of  matters  in  the  future  which  induced  the 
other  party  to  assume  the  obligations. (2)  As  maps  or  plans  are  often 
used  in  connection  with  the  sale  of  land,  a  question  of  some  practical 
importance  arises  as  to  their  effect.  When  used,  referred  to,  or  shown 
by  the  vendor  at  the  time  of  the  contract,  to  how  great  an  extent  do  they 
constitute  representations  by  him  that  the  premises  are  or  will  be  in  the 
condition  pictured  and  described  in  these  papers?  If  the  map  or  plan 
is  actually  incorporated  into  the  contract,  or  is  referred  to  and  identi- 
fied so  as  to  make  it  part  of  the  contract,  no  question  can  arise ;  it 
becomes  a  term  of  the  agreement  to  be  carried  into  effect  and  complied 
with  as  much  as  any  other  term.(3)  On  the  other  hand,  if  there  is  no  such 

(1)  Bi-yant  v.  Busk,  4  Russ.  1.  This  rule  grows  out  of  a  practice  on  the  sale  and 
conveyance  of  land,  peculiar  to  Great  Britain.  The  vendor  and  grantor  must 
show  his  title  ;  must,  therefore,  exhibit  all  the  title-deeds  ;  must  be  prepared  to 
show  their  execution ;  and,  finally,  if  the  land  is  conveyed,  must  deliver  up  these 
title-deeds  to  the  grantee ;  a  transfer  of  the  deeds,  as  muniments  of  title,  is  as 
much  a  matter  of  course  and  almost  as  important  as  the  execution  of  a  convey- 
ance. It  follows  that  if  these  title-deeds  are  not  forthcoming,  whether  through 
accident  or  design,  the  title  is  not  perfected,  and  the  purchaser  cannot  feel  secure 
in  his  possession.  Our  simpler  mode  of  convejance,  and  especially  our  system 
of  universal  i-egistry,  have  removed  all  of  these  reasons  and  grounds  on  which  the 
English  rule  rests,  and  the  rule  itself  cannot  prevail  in  this  country. 

(2)  Hee  ante,  section  on  "  Misrepresentations,"  chapter  2,  section  12.  Beaumont 
V.  Dukes,  Jac.  422,  a  ventlor  had  represented  that  he  would  make  certain  im- 
])rovenients  about  the  pi-operty,  and  his  failure  to  do  so  was  held  a  ground  foi- 
3'efusing  a  specific  i)erforinance  which  he  asked  ;  and  in  Myers  v.  Watson,  1  Sim. 
{N.  S.)  52H,  vt'iidor  represented  that  a  church  would  be  erected  in  the  immediate 
neighborhood  of  the  land — which  v^^as  sold  for  building  lots — and  that  he  would 
make  certain  streets,  and  non-performance  of  these  promises  prevented  him  from 
obtaining  the  relief. 

(3)  Nene  Vallny  Drainage,  etc.,  Comm'rs  v.  Dunkley,  L.  R.  4  Ch.  D.  1.  The 
commissioners  (plaintiffs)  agreed  to  sell  land  to  defendant  D.  The  contract  did 
not  refer  to  any  plan,  but  the  agents  who  signed  it  signed,  at  the  same  time,  this 
memorandum,  written  upon  a  plan  of  the  propei-ty.     "  Plan  of  the  property  sold 

421 


PERFORMAyCK   BY   PLAINTIFF.  409 

incorporation — if  the  contract  in  no  manner  refers  to  the  plan,  and 
there  is  no  contemporaneous  memorandum  of  reference — then  tlie  mere 
use  and  exhibition  of  a  map  or  plan  does  not  make  it  avail  as  a  part  of 
the  agreement,  nor  as  a  representation  concerning  the  subject-matter 
binding  upon  the  vendor. (1)  This  latter  rule  has  been  applied  under 
peculiar  circumstances,  and  with  some  limitations,  in  a  number  of  com- 
paratively recent  English  cases,  which  are  described  in  the  foot-note. (2) 

to  and  pui'chased  by  D.,  23d  October,  1874.  N.  B. — The  ])roperty  included  in  the 
purchase  is  edg-ed  with  red  color."  Held,  by  Jessel,  M.  R.,  and  by  the  Court  of 
Appeals,  "  that  the  plan  was  sufficiently  incorporated  and  controlled  the  descrip- 
tion in  the  written  contract." 

(1)  Feoffees  of  Heriot's  Hosiiital  -y.  Gibson,  2  Dow.  301  ;  Squire  7).  Campbell.  1 
My,  &  Cr.  459.  This  rule  is  also  held  in  Eng-land  to  apply  to  special  acts  of 
Pai-liament,  such  as  acts  of  incorporation  ;  so  that  maps,  plans,  etc.,  deposited 
cannot  be  used  afterwards  in  construing-  the  statute  or  in  controlling  its  provisions, 
unless  they  are  referred  to  by  the  statute,  and  thus  incorporated  into  it.  North. 
British  R'y  Co.  v.  Tod,  12  CI.  &  Fin.  722  ;  Beardmer  v.  London  &  N.  W.  R'y  Co., 
1  McN.  &  G.  112 

(2)  I  have  placed  these  cases  in  the  note  because  they  contain  no  new  rule  and 
no  general  modification  of  that  stated  in  the  text,  and  because  the  conclusions 
reached  by  the  court  depended  upon  special  facts.  In  Peacock  \i.  Penson,  11 
Beav.  355,  361,  while  the  rule  of  the  text,  that  a  map  not  referred  to  nor  in  any 
manner  incorporated  into  the  contract  does  not  become  a  part  of  it,  was  i-ecog-- 
nized  ;  it  was  also  held,  that  whei'e  a  maj),  used  by  the  vendor  at  the  sale,  showed 
the  property  as  intended  to  be  divided  by  certain  new  roads  laid  down  in  the  jilot, 
the  vendor  could  not  afterwards  divide  up  the  property  in  a  manner  so  diffei-ent 
from  the  mode  thus  indicated,  that  a  class  of  resident  population  would  naturally 
be  attracted  and  collected  entirely  diffez-ent  from  the  class  which  would  have  been 
attracted  if  the  original  plan  of  dividing  the  lots  had  been  carried  out.  Other 
cases,  instead  of  making-  the  exhibition  of  a  map  amount  to  a  binding  representa- 
tion upon  the  vendor,  hold  that  even  when  a  map  or  plan  is  expressly  referred  to 
in  the  contract,  it  need  not  be  followed  with  absohde  exactness  by  the  vendor  in 
his  subsequent  dealing  with  the  property — meaning  thereby,  of  course,  the 
remaining  portion  of  the  entire  property  delineated  on  the  map  which  was  not 
embraced  in  and  sold  by  the  particular  contract  in  question.  For  examj^le,  in 
Nurse  v.  Lord  Seymour,  13  Beav.  254,  a  map  of  the  entire  property  was  used,  and 
was  actually  referred  to  in  the  contract  in  describing  the  portion  of  the  land 
embraced  therein  and  sold  thereby  ;  this  map  contained  a  street,  the  width  of 
which  was  marked  down  as  so  many  feet,  but  there  was  no  clause  or  provision  of 
the  conti-act  specially  i-efen-ing  to  this  i)ortion  of  the  map  as  intended  to  be  bind- 
ing ;  and  it  was  held  not  to  be  a  part  of  the  agi'eement,  and  not  to  prevent  a 
subsequent  change  in  the  width  of  the  street.  Also,  in  Randall  ti.  Hall,  4  DeG.  & 
Sm.  343,  the  printed  "  particulars  "  of  the  sale  referred  to  an  accompanying  plan, 
on  which  roads  were  so  laid  out  that  all  the  lots  fronted  upon  some  one  of  them, 
and  the  roads  were  even  marked  out  on  the  land  itself,  although  not  actually 
made,  and  yet,  because  there  was  no  provision  in  the  "particulars,"  nor  in  the 
contract,  binding  the  vendor  to  open  and  maintain  these  roads,  it  was  held  that 
the  purchasers  of  lots  were  not  entitled  to  have  the  roads  so  laid  out  and  made. 
In  all  the  foregoing  cases  the  representations  (if  any)  of  the  maps  were  promis- 
sory ;  it  has  been  held  that  where  an  accompanying  map  or  plan  (not  incorporated 

422 


410  SPECIFIC  PERFORMANCK    OF    CO.XrRACTS. 

Performance  of  the  condition  in  conditional  contracts. 

Sec.  384.  Conditions  may  be  iirecedent  or  subsequent.  In  the  case 
of  the  latter  the  estate  vests,  or  the  right  accrues,  subject  to  be  divested 
or  defeated  upon  a  breach  of  the  condition  ;  but,  in  case  of  the  former 
no  estate  vests,  or  riglit  accrues,  until  the  liappening  of  the  event 
which  constitutes  the  condition.  Where  a  contract  is  thus  conditional 
— that  is,  where  it  rests  upon  a  condition  i)recedent,  until  the  iiertorni- 
ance  of  the  condition  it  caiuiot  be  enforce(i,  because,  until  that  time, 
there  is  no  true  contract.  But  upon  the  performance  of  the  condition  it 
becomes  absolute  to  all  intents  and  purposes,  the  same  as  though  it 
had  been  originally  framed  so  as  to  be  absolute  and  not  resting  upon  a 
condition.  The  fact  that  a  contract  depends  upon  a  condition  pre- 
cedent, w'hich  has  not  yet  been  performed,  is  always  a  complete  defense 
to  a  suit  for  its  specific  enforcement. (1)  Equity,  therefore,  never 
relieves  against  the  non-performance  or  breach  of  conditions  pre- 
cedents, since  no  estate  vests,  or  right  accrues,  as  long  as  the  condition 
thus  remains  unperformed. (2)  But  since  an  estate  does  vest,  or  right 
accrue,  in  case  of  a  condition  subsequent,  subject  to  be  defeated  on  the 
breach,  equity  can  and  does  grant  relief  in  case  of  the  breach  of  such 
a  condition,  provided  that  adequate  compensation  can  be  made.{3) 

into  the  contrac^t  so  as  to  become  a  part  of  it),  represents  the  then  existing;-  state  or 
condition  of  the  property,  its  effect  npon  the  ri^q-hts  of  the  vendee  is  not  any  {greater 
than  an  actual  view  of  the  property  by  him  would  jiroiluce.  In  Fewster  i'. 
Turner,  11  L.  J.  Ch.  1(31,  a  plan  of  several  lots  showed  a  well  on  lot  four  com- 
municating' wtha  reservoir  on  lot  two,  and  this  reservoir  communicating  with  an 
inn  on  lot  one.  The  plaintiff,  after  inspecting  this  i)Iain,  purchasetl  lot  oni',  with 
the  inn.  and  the  vendor  afterwards  sold  lots  four  and  two  without  exc(>i)ting  or 
reserving  any  water  right  for  lot  on(%  and  it  was  held  that  the  plaintifl"  was  not 
entitled  to  any  compensation  from  him  in  respect  of  the  loss  of  the  water  i-iglit. 
The  correctness  of  this  decision  may  well  be  doubted,  and  is  doubted  l)y  Lord  St. 
Leonards.     See  Sugden  on  Vendors,  p.  20. 

(1)  Regents  Canal  Co.  v-  AVare,  23  Beav.  58G,  per  Sir  J.  Ro>riLi.Y,  M.  R  ;  Lan- 
ingt).  Cole,  3  Green's  Ch.  22D,  if  defendant  contracts  to  do  something  on  the  per- 
form.ance  of  cei-tain  conditions  by  the])laintifl',  andthe])laintiff  ])erfoi-ms,  asjiecific 
execution  will  be  granted  against  the  defendant.  Diily  f.  liai-nard,  8  CJill.  & 
Johns.  170,  plaintifl'  enforcing  a  conditional  contract  must  show  that  he  has  lYilly 
performed  the  conditions,  on  his  jiart,  to  be  done  ;  as,  for  ex.ami)l(>,  the  jjlaintiif 
contracts  for  a  lease  on  the  i)erf()rmance  by  himself  of  c(!rtain  acts,  and  takes  ])OS- 
session  of  the  land  but  fails  to  perform  the  conditions,  he  cannot  compel  an  execu- 
tion of  the  lease.  Jones -y.  Roberts,  6  Call  187;  Harvie  v.  Banks,  1  Rand.  408; 
Armstrong  ■«.  Wyandotte  Bi-idge  Co.,  McCahon  (Kans.),  IGO  ;  Eppinger  D.  McGreal, 
31  Tex.  147  (Where  the  contract  was  to  grant  a  lease  to  a  company  to  be  formeil 
by  the  phaintift",  and  at  the  trial  no  such  company  had  been  formed,  specific  per- 
formance was  denied,  as  the  plaintiff  had  not  performed  the  condition  ;  a  decree 
granting  specific  iiei-formance  on  the  jilaintiff's  luidei-taking  to  eslablivh  the  com- 
pany was  en-oneous.  Williams  v.  Bi-isco,  22  Ch.  D.  441  See,  also.  Frame  v. 
Frame,  32  W.  Va.  4(53  ;  Thayer  v.  Wilmington  Star  Mining  Co  .  10,')  111.  .^40 ; 
Boyes  v.  Green  Mt.  Falls  Town  and  Imj).  Co.  (Colo.  Apj).),  33  P  77  (May  8,  '!)3) ; 
Wheojer  V.  Wheeler,  2  N.  Y.  Siii)p.  49(;.  For  fui-ther  examples  of  contlitional 
contra<;ts,  see  Hutchinson  v.  McNiitt,  1  Ohio,  14  ;  MeudcMihall  v.  Kiuck,  .')0  Barb. 
634  ;  Southworth  v.  Hoi)kins,  11  Mo.  331 ;  Worden  v.  Christ,  10(5  111.  326  ;  Putnam 
V.  Grace,  Kil  Mass.  237.  j 

(2)  Turnpike  Co.  v.  Churchill,  6  Monr.  427 

(3)  Wells  V.  Smith,  2  Kkw  Ch.  78;  Chijiman  v  Thomp.son,  Walk.  Ch. 
40.5;  Walker  v.  Wheelei-,  2  Conn  2!l0  :  !)<>  Forrest  v  Bates,  1  K.lw.  Ch.  394; 
Stuyvesant  v.  Davi.s  9  Paige,  427,  ])er  W.\i,wokti[,  (^h  [See,  also,  Southern 
Pine  Fibi-e  Co.  v.  North  Augusta  Land  Co..  .o3  Fed.  R<'p  318;  Monterey 
County  V   Seegleken,  (Cal.)  36  Pac.   Rep.  TA').\     As  to  how  f;ii-  conti-acts  ina<l'e 

423 


rh'UFOJi.UA.XCK   11  y    PLAiyill'F.  411 

Skc.  335.  No  rolief,  howcvor,  will  be  granted  iii  case  of  a  subsequent 
condition  if  the  breach  of  it  -was  intentional,  willful,  nor  where 
it  will  not  admit  of  couipeusation.  When,  however,  the  only  default 
of  the  plaintiff  is  delay,  and  the  position  of  the  defendant  has  not 
been  materially  changed  thereby,  a  performance  after  the  stipulated 
time  may  entitle  the  plaintiff  to  a  decree  for  a  specific  execution,  since, 
mere  lapse  of  time  is  not,  in  general,  a  sufficient  grouTid  in  cfiuity  for 
the  refusal  of  relief.  (1)  A  forfeiture  caused  by  the  non-payment  of 
money,  however  express  may  be  the  language  of  the  contract,  will,  as  a 
general  rule,  be  relieved  from,  on  the  theory  that  interest  is  a  sufhcient 
compensation. (2)     But  the  failure  to  pay  must  not  be  willful,  nor  the 

bv  railway  corporations,  or  railway  promoters,  are  conditional  upon  the  actual 
building-  the  railway,  in  England,  see  Webb  v.  Direct  London,  etc.,  R'y  Co.,  1 
DeG.  M.  &  G.  521  ;  Lord  James  Stuart  v.  London  &  N.  W.  R'y  Co.,  1  DeG.  M.  & 
G.  721  ;  5  H.  L.  Cas.  351 ;  Hawkes  v.  Eastern  Counties  R'y  Co.,  1  DeG.  M.  &  G. 
737  ;  5  H.  L.  Cas.  331  ;  Gage  v.  Newmarket  R'y  Co.,  18  Q.  B.  457 ;  Edingburgh, 
etc.,  R'y  Co.  v.  Philip,  2  McQueen,  514. 

(1)  Vernon  v.  Stephens,  2  P.  Wms.  66  ;  Edgerton  v.  Peckham,  11  Paige,  352, 
359  ;  De  Camp  v.  Feay,  5  S.  &  R.  323,  32J  ;  Clark  v.  Lyons,  25  111.  105  ;  Snyder  v. 
Spaulding,  57  111.  480,  484.  In  Edgerton  v.  Peckham,  supra,  the  vendor  agreed 
to  sell  a  lot  for  $300,  one-third  to  be  paid  down,  and  the  rest  in  one  and  two 
years,  possession  to  be  delivered  at  once  ;  and  it  was  also  agreed  that  if  the  ven- 
dee made  default  in  either  of  the  latter  two  x'-yments,  the  vendor  should  not  be 
bound  Lo  fultill,  but  the  vendee  should  forfeit  what  he  had  before  paid,  and  should 
surrender  up  the  land.  The  vendee  paid  the  $100  down,  took  iiossession  and 
made  valuable  improvements,  and  paid  the  first  installment  of  the  residue,  but 
delayed  in  paying  the  last  installment.  The  vendor  made  no  demand,  and  did  not 
tender  a  deed,  but  when,  after  a  delay  of  a  few  days,  the  purchaser  offered  the 
money,  the  vendor  refused  to  accept  it,  and  claimed  that  the  contract  was  avoided. 
The  vendee  sued  for  a  specific  performance,  which  was  granted  by  the  V.  C.  On 
appeal,  the  chancellor  held  that  the  case  differed  in  its  principle  from  "Wells  v. 
Smith,  7  Paige,  22.  In  that  case  the  condition  was  precedent ;  the  deed  was  to  be 
delive}-ed  on  a  certain  day,  and  the  purchase-pi-ice  secured  by  a  bond  and  mort- 
gage, and  the  vendee  was  also  to  build  a  house  of  a  prescribed  size  before  that 
date,  or,  instead  thereof,  was  to  pay  $1,000  of  thepi-ice,  and  by  the  express  terms 
of  the  contract  the  deed  was  not  to  be  given  until  all  these  things  were  done.  The 
vendee  did  none  of  them  ;  he  had,  in  fact,  only  paid  for  the  use  of  the  land,  and 
had  failed  to  fulfill  what  was  a  condition  precedent.  If,  in  the  contract  then 
before  the  court,  the  meaning  was,  that  if  the  vendee  did  not  pay  the  last  install- 
ment as  soon  as  it  was  due,  he  should  lose  what  he  had  already  paid,  and  the 
vendor  might  keep  both  the  money  and  the  land,  a  court  of  e  luity  would  not 
allow  such  an  intention  to  be  carried  into  effect.  The  decision  of  the  V.  C.  was, 
therefore,  affirmed. 

(2)  Wells  V.  Smith.  7  Paige,  22,  24  ;  Edgerton  v.  Peckham,  11  Page,  352,  359  ; 
Sanborn  v.  Woodman,  5  Cush.  36  ;  De  Camp  v.  Feay,  5  S.  &  R.  323,  320  ;  Rem- 
ington V.  Irwin,  2  Harris,  143,  145  ;  and  the  default  of  a  vendee  will  be  waived 
by  the  vendor's  accei)ting  payment  of  the  balance  of  the  price  after  the  condition 
broken.  Grigg  v.  Landis,  21  N.  J.  £(1.  494. 
424 


412  SPECIFIC   PKHFORMAMCK    OF   COAT/x'ACTS. 

delay  in  payment  be  unreasonably  long,  and  the  iilaiiitiff  seeking 
relief  from  his  default  must  show  that  it  was  noi,  intentional,  ami  has 
not  caused  irreparable  injury  to  the  defendant. (1)  A  failure  to  })er- 
fect  the  title  or  to  give  a  conveyance  at  tlie  time  stipulated,  is  not, 
liowever,  always  excused.(2)  And  equity  will  not  interpose  to  relieve 
against  a  subsequent  breach  of  condition  or  forfeiture,  unless  the 
default  was  accidental  or.  through  mistake — or  at  least  not  intentional 
or  willful — nor  unless  adequate  compensation  can  be  made  to  the 
party  suffering  from  the  omission. (8) 

Sec.  836.  The  result  is  that  when  the  intention  from  the  whole 
agreement  is  plain,  that  payment  or  the  perfecting  and  giving  a  good 
title,  at  or  before  a  certain  specified  time,  shall  be  a  jtrerequisite  to 
the  vesting  of  any  right  under  the  contract,  the  provision  is  in  the 
nature  of  a  precedent  condition,  and  must  be  complied  with,  for 
equity  cannot  relieve  against  the  non-performance  of  such  a  condi- 
tion by  making  a  subsequent  ofi'er  to  perform  the  same  as  an  actual 
compliance  with  the  terms  as  they  were  agreed  upon  by  the  parties. 
On  the  other  hand,  if  the  intention,  as  shown  by  the  contract,  is  to 
vest  a  right  under  it  in  the  purchaser  at  once,  such  a  right  as  would 
pass  to  his  heirs  or  devisees,  then  a  default  in  performance  at  the 
time,  according  to  the  terms,  if  not  intentional  or  willful,  and  if  not 
irreparably  injurious,  will  be  relieved  against.  This  subject  is  more 
fully  discussed,  and  many  additional  cases  are  cited  in  the  subsequent 
section  upon  "  Time  of  Performance." 

Sej.  337.  The  entry  of  the  purchaser  into  possession,  together 
with  his  part  payment  of  the  price,  or  his  making  vaiiuiblo  im})rove- 
ments,  may,  of  themselves,  be  a  sufficient  ground  of  relief  to  a  default- 
ing purchaser,  when,  perhaps,  relief  could  not  be  granted,  if  asked  for 
upon  the  very  terms  of  the  contract ;  for  the  contract  cannot  be  made 

(1)  Hancock  v.  Cai-lton,  6  Gray,  39 ;  Jones  v.  Robbins,  29  Me.  351 ;  Hall  v. 
Delaplain,  5  Wise.  206.  In  Hall  v.  Delaplain,  the  vendee  gave  notes  for  the 
price,  and  a  stipulation  that  if  said  notes  were  not  paid  when  due.  "  the  vendor 
should  have  the  option  of  declaring-  the  contract  forfeited,"  was  held  to  be  a 
subsequent  condition,  and  default  in  2>ayinent  at  the  day  was  relieved  a^-ainst, 
the  purchaser  having-  tendei-ed  tlit!  money  on  learning-  that  the  vendor  intended 
to  enforce  the  forfeiture.  In  Jones  v.  Robbins,  supra,  the  vendee  had  delayed  in 
all  his  payments,  and  still  was  allowed  a  specific  enforcement,  on  jiroof  that  iiis 
delay  to  pay  the  tii-st  installment  was  due  to  his  being  taken  sick  when  away  from 
home,  an(i  his  subsequent  defaults  were  caused  by  the  vendor's  claim  that  the 
contract  had  been  forfeited. 

(2)  See  Wells  t».  Smith.  7  Paige,  22,  23,  26. 

(3)  Jones  v.  Robbins.  29  Me.  3.-)l  ;  Hill  v.  Barclay,  16  Ves.  402  ;  18  Ves.  56  ;  Rey- 
nolds V.  Pitt,  19  Ves.  134  ;  Paschall  v.  Passmore,  3  Hariis,  295,  306. 

425 


PERFORMANCE  BY  PLAINTIFF.  413 

a  means  of  surprising  and  oppressing  a  purchaser  who  has  thus  gone 
on  under  the  belief  that  his  rights  were  secure,  and  expended  money 
and  otherwise  changed  liis  legal  position. (1)  Whenever,  also,  the 
plaintiff's  delay  or  default  in  performing  the  terms  and  conditions 
on  his  part,  at  the  time  specified,  is  caused  by  the  defendant's  0"wn 
neglect,  laches,  or  other  conduct,  such  omission  will  not  be  a  ground 
for  refusing  the  relief  which  he  asks,  no  matter  how  express  may  be  the 
provision  of  the  contract  requiring  a  punctual  performance  and  mak- 
ing it  essential ;  a  defendant  cannot  rely  as  a  defense  upon  a  breach 
which  he  himself  has  caused. (2)  A  vendor,  therefore, 'who  can- 
not make  out  a  clear  and  good  title,  cannot  set  up,  in  defense,  the 
plaintiff's  delay  in  payment,  even  though  there  is  a  stipulation  that 
the  contract  shall  be  avoided  if  the  payment  is  not  made  at  the 
time. (3)  A  condition  that  the  title  shall  be  made,  or  the  price  shall 
be  paid,  on  or  before  a  day  named,  may  be  "waived  by  the  party 
entitled  to  its  performance  ;  and  if  such  party  thus  waives  the  exact 
performance  at  the  day,  or  if  he  goes  on  treating  the  agreement  as 
still  binding  after  default  has  been  made,  he  cannot  afterwards  turn 
around  and  set  up  the  delay  or  default  as  creating  a  forfeiture,  and 
therefore,  a  defense.(4) 

Sec.  338.  Whether  a  contract  is  conditional  or  absolute,  and  if  con- 
ditional whether  it  is  precedent  or  subsequent,  depends  upon  the 
intention  of  the  parties  gathered  from  the  entire  agreement.  The 
condition  may,  of  course,  be  expressed  in  formal  and  technical 
language,  so  as  to  leave  no  question  as  to  its  existence  or  as  to  its 
nature.  But  this  is  by  no  means  necessary.  If,  from  the  language 
of  the  entire  contract,  the  intention  of  the  parties  is  found  to  be  such 
that  the  agreement  is  based  upon  a  condition,  this  intention  being 
ascertained,  must  be  followed  as  far  as  the  rules  of  equity  will  permit. 
In  cases  of  doubtful  construction,  the  courts  lean  in  favor  of  a  subse- 
quent rather  than  a  precedent  condition,  because  the  latter  tends  to 
defeat  the  operation  of  the  contract.  In  distinguishing  between  these 
two  kinds  of  conditions,  the  rule  of  construction  is  settled  that  if  the 
act  or  event  which  constitutes  the  condition  does  not  necessarily  pre- 
cede or  accompany  the  vesting  of  the  estate,  or  the  accruing  of  the 

(1)  See  Edg-erton  v.  Peckharn.  11  Paig-e,  3o2  ;  Bellamy  v.  Rag-sdale,  14  B.  Monr. 
293  ;  and  see  Hoag-  v.  Owen,  60  Barb.  34. 

(2)  P6tt,er  V.  Tnttle,  22  Conn.  512  ;  Snyder  v.  Spaulding-,  .^7  III.  480.  487. 

(3)  Converse  7'.  Blumrich.  14  Mich.  109  ;  Wallace  Vi.  McLauo^hlin,  .57  111.  53. 

(4)  Ewinff  V.  Gordon,  49  N.  H.  460  ;  Sharp  v.  Trimmer,  9  C.  E.  Green,  422 ; 
Beatson  v.  Nicholson,  6  Jur.  620.  [See,  also,  Lamare  v.  Dixon,  L.  R.  6  H.  L.  414  ; 
Hurst  V.  Thompson,  73  Ala.  158  ;  McDoiigall  v.  Hall,  13  Ont.  R.  166.J 

426 


414  SPECIFIC  PEFFOR.VANCR   OF  CO.\riiACTS. 

right,  so  that  such  act  or  event  may  as  well  be  done  after  as  before 
such  vesting-  of  the  estate  or  accruing  of  the  right ;  or  if,  from  the 
nature  of  the  act  to  be  done,  and  the  time  required  for  its  perform- 
ance, it  is  evidently  the  intention  that  the  estate  shall  lirst  vest,  or 
the  right  shall  accrue,  and  that  the  i)urchaser  or  grantee  shall  do  the 
act  after  taking  possession,  then  the  condition  is  a  subsequent  one 
and  not  precedent.(l) 

The  plaintiff's  inability,  when  vendor,  to  give  a  good  title  or  to 
convey  the  subject-matter  as  specified  in  the  contract. 

Sec.  iVod.  II.  If  a  vendor  agrees  to  convey  a  cerTain  aiiiuiuit 
of  land,  or  an  estate  of  any  certain  kind  —  e.  g.,  a  leasehold  for 
twenty-one  years  —  or  to  give  a  title  of  a  specified  quality,  and  is 
unable  to  fulfill  his  contract  exactly;  that  is,  is  unable  to  give  the 
whole  amount  of  land,  or  an  estate  of  as  high  a  character  or  as 
great  extent,  or  to  make  a  title  as  described  without  some  defect 
or  incumbrance,  the  law  holds  liim  as  utterly  failing,  and  as  com- 
pletely incapacitated  from  any  legal  mode  of  enforcement,  and  the 
purchaser  may  recover  back  any  deposit  he  has  paid,  even  though 
the  vendor  should  offer  compensation. (2)  The  doctrine  of  equity  is 
somewhat  diti'erent.  In  equity,  if  the  vendor  can  give  the  purchaser 
substantially  what  he  agreed  to  give,  then  he  can  obtain  a  decree  of 
specific  performance,  even  though  he  may  be  unable  to  comply  with 
the  literal  and  exact  terms  of  his  contract ;  but  in  such  case  he  may 
be  compelled,  as  an  incident  of  his  remedy,  to  give  the  purchaser 
compensation  for  the  difference  in  value  between  what  the  latter  was 
to  receive  by  the  contract,  and  what  he  actually  obtains  by  the 
decree. (3)     I  shall  discuss  the  subject  of  compensation  in  a  following 

(1)  Undei-hill  v.  Saratoga,  etc.,  R.  R  .  20  Barb.  455.  In  NicoU  v.  N.  Y.  &  Erie 
R.  R.,  12  N.  Y.  121,  a  conveyance  was  made  to  a  corporation  upon  the  express 
condition  that  the  company  should  construct  its  railroad  within  the  time  pre- 
Bcribed  by  the  act,  and  this  was  held  to  be  a  condition  subsequent,  since,  of 
necessity,  the  company  was  entitled  to  possession  of  the  land,  and  the  act  could 
only  be  done  after  the  vestino-  of  the  estate. 

(2)  Farrer  v.  Nightingal,  2  Esp.  m9  ;  Ilibbert  v.  Shee,  1  Camp.  113  ;  Duffell 
V.  Wilson,  1  Camp.  401. 

(3)  Halsey  v.  Grant,  13  Ves.  77,  iier  Lord  Ch.  Erskixk  ;  Guest  v.  Homfray,  5  id. 
818  ;  Mortlock  v.  BuUer,  10  Ves.  306  ;  Vignolles  v.  Bowen,  12  Ir.  Ecp  Rep.  194. 
In  Halsey  v.  Grant,  Lord  Erskine;  said  :  "  Equity  does  not  permit  the  forms  of  law 
to  be  made  instruments  of  injustice  ;  and  will  interpose  against  parties  attemptiner 
to  avail  themselves  of  the  rigid  rule  of  law  for  unconscientious  pui-poses.  "Where, 
therefore,  advantage  is  taken  of  a  circumstance  that  does  not  admit  a  strict  per- 
formance of- the  contract,  if  the  failure  is  not  substantial,  equity  will  interfere. 
If,  for  instance,  the  contract  is  for  a  term  of  ninety-nine  years  in  a  farm,  and  it 
appears  that  the  vendor  has  only  ninety-eight  or  ninety-seven  years,  he  must  be 
non-suited  in  an  action  at  law  ;  but  equity  will  not  so  deal  with  him  ;  iind  if  the 

427 


ENFORCING    PERFORMANCE.  415 

section  ;  in  the  present  subdivision,  1  shall  examine  the  general  doc- 
trine that  the  vendor  nnist  substantially  perform,  so  far  as  it  can  be 
separated  from  the  particular  questions  arising  from  the  delay  in 
performance,  and  the  right  to  compensation  from  a  defect  of  perform- 
ance. It,  however,  the  vendor's  failure  to  perform  is  substantial  and 
material,  not  admitting  of  adequate  and  reasonable  compensation,  he 
can  have  no  equitable  remedy,  and  will  even  be  compelled,  by  a  court 
of  equity,  to  repay  the  deposit  which  he  may  have  received.(l) 

In  cases  "where  time  is  essential. 

Sec.  340.  It  may  be  stated,  as  a  general  proposition,  that  if  a  vendor 
cannot  give  a  good  title,  and  deliver  possession  at  the  time  specified 
in  the  agreement,  he  cannot  obtain  a  decree  of  specific  execution 
against  the  purchaser  in  a  case  where  time  is  essential ;  that  is,  where 
com[)letion  of  the  contract  and  delivery  of  possession  at  the  stipulated 
time  are  material  to  the  purchaser,  and  he  is  then  ready  and  willing 
to  accept  the  conveyance  and  pay  the  price. (2)  This  proposition, 
however,  does  not  apply  to  those  cases  in  which  time  is  not  essential, 
the  consideration  of  which  is  postponed  to  the  next  succeeding  section. 
The  vendor  must  certainly  do  all  within  his  power  to  perfect  his  title 
and  complete  the  contract  within  a  reasonable  time,  or  he  wall  lose  all 
<-laim  to  the  aid  of  a  court  of  equity  ;(3)  and  that  aid  will  be  withheld 
from  a  vendor  who  has  fraudulently  concealed  the  defect  which 
caused  the  delay  in  perfecting  his  title.  (4) 

"Where  vendor  had  no  title  at  the  time  of  making  the  contract. 

Sec.  341.  There  are  cases  which  hold  that  if  the  vendor  did  not 
own,  at  the  time  of  making  his  contract,  what  he  agreed  therein  to 
sell,  equity  will  not  enforce  a  specific  performance  upon  an  unwilling 
purchaser,  even  though  he  acquired  the  ownership,  and  was  able  to 
give  a  good  title  to  it  by  the  time  specified. (5)  These  decisions, 
however,  can  hardly  be  reconciled  with  the  general  scope  of  the 
authorities  on  this  point,  as  will  appear  hereafter.     The  reasoning  on 

other  party  can  have  the  substantial  benefit  of  his  contract,  that  slight  difference 
being  of  no  importance  to  him,  equity  will  intei-fere.  Thus  was  introduced  the 
principle  of  compensation  now  so  well  established — a  pi-inciple  which  I  have  no 
disposition  to  shake." 

(1)  As.  for  example,  a  vemlor  had  agreed  to  convey  a  term  of  sixteen  years* 
while  he  could  only  give  one  foi*  six  years.  Long  v.  Fletcher,  2  Eq.  Cas.  Abr.  5, 
pi.  4  ;  Spunner  v.  Walsh,  11  Ir.  Eq.  Rep.  597. 

(2)  Watts  t). Waddle,  6  Pet.  389 ;  McKay  v.  Carington,  1  McT-.  51  ;  Cooper  v.  Brown, 
2  McLean,  495 ;  Tiernan  v.  Roland,  8  Ilarris,  429  ;  Taylor  v.  Portei*,  1  Dana,  422. 

(3)  King  V.  Hamilton,  4  Peters,  311  ;  Tiernan  v.  Roland.  3  Hai-ris,  429  ;  Grundy 
V.  Ford's  Ex'ors,  Littells  Select  Cases.  129  ;  Rider  v.  Gray,  10  Md.  282,  286. 

(4)  Christian  v.  Cabell,  22  Gratt.  82. 

(5)  Hurley  v.  Brown,  98  Mass.  545  ;  Tiernan  v.  Roland,  3  Harris,  429,  436  ; 
Pipkin  V  James,  i  HLimph.  325,  328  [See,  also,  Norris  v.  Fox,  45  Fed.  Rep. 
406  ;  Cooper  v.  Chittenden,  (Nebr.)  50  N.  W.  Rep.  2.] 

4-8 


416  SrKVIMC   rElitOliMAiWE    OF  CUi\TUACTS. 

which  they  seeiu  to  rest  is,  that  when  such  a  cuutract  is  made  it  is 
wholly  uncertain  whether  the  vendor  will  complete  it,  and,  tlierelVtre, 
he  ought  not  to  insist  as  a  ri^^ht  uiutu  the  vendee's  accepting-  tli;it, 
which  he,  the  vendor,  might  not  have  been  able  to  convey  ;  that 
although  the  contract  is  in  form  absolute,  yet  it  is  in  reality  contin- 
gent— while  the  purchaser  nuiy  be  ignorant  t)f  this  latter  quality. (1) 
This  reasoning  could  not,  of  course,  apply  where  the  contract  itself 
disclosed  the  contingency,  and  the  vendee  was,  therefore,  informed  of 
the  true  condition  of  the  vendor's  personal  interest  and  future  expec- 
tations. If,  therefore,  the  agreement  shows  that  the  vender  is  not  at 
the  time  owner  of  the  subject-matter,  or  has  not  a  clear,  uniucumltered 
title  to  it,  but  is  to  acquire  the  ownership  or  perfect  the  title,  and  then 
convey,  within  the  time  specified,  these  circumstances  would  present 
no  obstacle  to  a  specific  enforcement  of  the  contract  by  tlie  vendor.(2) 
Wliere  the  vendee  agrees  to  purchase  a  title  which  he  knows  to  be 
defective,  or  the  interest,  whatever  it  may  be,  which  the  vendor  has, 
this  contract  wall  be  enforced  at  the  vendor's  suit,  if  not  illegal  on  the 
ground  of  maintenance. (3) 

Where  he  had  only  an  equitable  title. 

Sec.  342.  It  is  also  settled,  that  if  the  vendor  has  a  good  equitable 
title  to  the  land — as,  for  example,  he  holds  the  land  under  a  land  con- 
tract— the  mere  fact  that  the  legal  title  was  outstanding  at  the  time  of 
making  the  agreement  is  no  objection  to  his  enforcing  perfomance 
after  he  has  obtained  such  legal  title. (4)     In  England  it  very  fre- 

(1)  See  Lay  v.  Huber,  3  Watts,  3G7. 

(2)  Dresel  v.  Jordan,  104  Mass.  407  ;  Old  Colony  R.  R.  v.  Evans,  6  Gray,  25. 
The  rule,  as  generally  acce2)ted  by  the  authorities,  is  thus  laid  down  in  Dressell 
V.  Jordan  :  "  If  the  vendor  can  make  g^ood  the  title  he  has  contracted  to  convey  " 
(within  time  to  satisfy  the  tei-rns  of  the  conti-act  and  the  doctrines  of  ecjuity),  "  it  is 
not  requisite  that  he  should  have  such  title  and  capacity  to  convey,  or  such  means, 
at  the  time  of  the  ag-reement.  *  *  *  It  is  sufficient,  upon  a  contract  niaxle  in 
good  faith,  if  he  is  able  to  make  the  stipulated  title  at  the  time  when,  by  the 
terms  of  his  agreement,  or  by  the  equities  of  the  particular  case,  he  is  required 
to  execute  the  conveyance  in  order  to  entitle  himself  to  the  considei-ation."  Rich- 
mond V.  Gray,  3  Allen,  25  ;  and  see,  to  the  same  effect,  Thompson  v.  Myi-ick,  20 
Minn.  205  ;  Dalzell  v.  Crawford,  1  Pa.  L.  J.  Rep.  155  ;  Christian  v.  Cabell,  22 
Graft.  83  ;  [Bellamy  v.  Debenham  [1891],  1  Ch.  412  ;  In  re  Bryant,  44  Ch.  D.  218  ; 
Wylson  V.  Dunn,  34  Ch.  D.  578  ;  Canton  Co.  u.  B.  &  O.  Ry.  Co  (.Md  ),  29  Atl.  Rep. 
8-21  (June  21,  1894)  ;  Core  r.  WigTier's  Heirs,  32  W.  Va.  277  ;  Townshend  v.  Good- 
fellow,  40  Minn.  312;  Newberry  v  Slafter.  98  Mich.  468  ;  Collins  v.  Park  (Ky.), 
18  S.  W.  Rep.  1013.     See,  also.  po««,  §§  421  e^  .sr?  J 

(3)  Brashier  v.  Gratz,  6  Wheat.  528. 

(4)  Tiernan  v.  Roland,  3  Hai-ris,  429  ;  Lay  x\  Huber,  3  Watts,  3(57.  In  the  first 
of  these  cases  it  was  held,  that  where  the  vendee  contracted  to  purchjuse  the  fee, 
he  would  not  be  compelled  to  accejit  a  life  estate,  nor  any  other  estate,  in  which 
the  vendor  had  no  right  or  intei-est  at  the  time  of  making  the  agi-eement  ;  but  that 
if  the  vendor  held  the  equitable  title  when  he  made  the  agi-eemerit,  and  after- 
wards and  before  the  hearing  acfjuii-ed  the  legal  title,  he  could  compel  a  specific 
pei'forniance. 

429 


PERFORMANCE  BY  PLAINTIFF.  417 

qiiently  happens  that  the  dry  legal  title  is  outstanding  in  trustees, 
and  a  specific  performance  is  there  sometimes  comi)elled,  although 
such  legal  title  is  not  got  in  by  the  vendor,  and  is  not,  therefore,  con- 
veyed to  the  vendee;  but  this  is  only  done  in  cases  where  the  equi- 
table title  conveyed  is  as  good  for  all  purposes  as  the  full  legal  title 
would  be.(l)  In  this  country  there  is  no  such  constant  separation  of 
the  titles,  and  the  legal  title  must  be  conveyed  in  all  cases  except 
where  the  contrary  is  expressly  stipulated.  The  vendor  cannot  compel 
a  specific  performance,  unless  he  has — in  this  country — a  good,  clear, 
marketable  title ;  and  a  reasonable  doubt  on  this  head  will  prevent 
his  obtaining  the  remedy. (2)  An  incumbrance  on  tlie  land  will 
not,  necessarily  prevent  a  specific  performance  at  tha  vendor's  suit, 
because  the  purchase-money  may,  by  order  and  under  direction  of  the 
court,  be  applied  in  discharge  of  the  mortgage  debt  and  removal  of 
the  lien.(3)  But  the  vendee  will  not  be  compelled  to  accept  land 
covered  by  an  incumbrance  which  cannot  thus  be  removed,  either 
because  the  amount  of  it  is  in  dispute,  or  because  the  purchase-price 
is  not  large  enough  to  pay  off  the  debt  (4) 

Di£Ferent   estate  or  interest   from  that   -which  vendor  agreed 
to  sell. 

Sec.  843.  In  a  preceding  paragraph  the  general  doctrine  of  equity 
was  stated  that  a  substantial  compliance  by  the  vendor  was  sufficient 
if  compensation  could  be  made  for  the  difference ;  but  that  if  the  fail- 
ure to  carry  out  the  contract  was  material,  the  vendor  could  not 
enforce  it  upon  an  unwilling  [)urchaser,  even  by  offering  compensa- 
tion. I  proceed  to  show,  by  examples,  what  failures  have  been  held 
material;  the  cases  where  the  defect  is  immaterial  and  which  admit 

(1)  See  Freeland  v.  Pearson,  L.  R.  7  Eq.  246. 

(2)  Richmond  v.  Gray,  3  Allen,  25  ;  Sturtevant  v.  Jaques,  14  Allen,  523  ;  Bura- 
berg-er  v.  Clippinger,  5  W.  &  S.  311  ;  Siieakman  v.  Forex>augh,  8  "Wi-ight,  363 ; 
Swayne  v.  Lyon,  17  P.  F.  Smith,  436  ;  Griffin  v.  Cunning-ham,  19  Gratt.  571  ; 
Butler  V.  O'Hear,  1  Dessaus.  382  ;  Moi-g-an  v.  Morgan,  2  Wheat.  290  ;  Sohier  ■». 
Williams,  1  Curtis  C.  C.  479  ;  [Landers  v.  Mclntyre,  8  Wash  203.]  But  a  mere 
possibility  or  suspicion  of  defect  is  not  enough.  Hayes  v.  Harmony  Grove  Cem- 
etery, 108  Mass.  400.     See  the  section  on  Doubtful  Title,  ante,  in  chajiter  2. 

(3)  Guynett  v.  Mantel,  4  Duer,  86  ;  Marsh  v.  Wyckoff,  10  Bosw.  202  ;  Thomp- 
son V.  Carpenter,  4  Barr.  132  ;  Wallace  v.  McLaughlin,  57  111.  53  ;  Tiernan  v. 
Roland,  3  Harris,  429.  This  last  case  holds,  that  when  vendor  gave  a  mortgage 
on  the  land  after  the  contract,  this  did  not  prevent  his  enforcement  of  the  contract, 
if  such  mortgage  was  satisfied  before  the  commencement  of  the  suit.  See  Brewer 
1}.  Herbert,  30  Md.  301. 

(4)  Hinckley  v.  Smith,  51  N.  Y.  21  ;  Garnet  v.  Macon,  6  Call.  309 ;  Christian  v. 
Cabell.  22  Gratt.  82  ;  Wallace  o.  McLaughlin,  57  111.  53  ;  Snyder  v.  Spaulding,  57 
111.  480 ;  Walsh  v.  Barton,  24  Ohio  St.  28  ;  Heimburg  v.  Ismay,  35  N.  Y.  Super. 
€t.  35;  Lesley  v.  Morris,  9  Phila.  110  ;  [Sanford  v.  Wheelan,  12  Oreg.  301.] 

430 


i 


418  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

of  compensation,  are  to  be  examined  in  another  section.  I  .•sliail 
consider,  tirst,  the  cases  in  which  the  kind  or  extent  of  tlie  interest 
actnally  given  is  dillerent  from  that  contracted  to  he  sold. 

Sec.  344.  If  a  ven(h)r  agrees  to  give  a  lease,  or  to  assign  a  lease, 
he  cannot  force  the  acceptance  of  an  under-lease  ujion  an  unwilling 
purcliaser.(l)  A  vendor  cannot  compel  a  specilic  performance  whiui  he 
<-an  only  give  a  ditferent  kind  of  estate  in  tlie  hind,  in  Etigland,  hind 
lield  by  a  different  teinire  from  that  described  in  the  contract ;  for  a  dif- 
ference or  defect,  liowevor  small  in  pecuniary  value,  is  not  "  imnuiterial  " 
when  it  extends  to  or  affects  the  entire  interest  described  in  the  agree- 
ment. Thus,  a  contract  to  convey  freehold  land  cannot  be 
enforced  by  a  vendor  who  has  only  a  lease-hold  interest,  even  if 
the  term  is  so  long  that  its  value  is  nearly  equal  to  that  of  a  freehold 
estate. (2)  Where  a  purchaser  contracted  for  an  estate  in  fee-sim- 
ple, subject  to  a  perpetual  rent-charge,  and  it  turned  out  that  the 
vendor's  only  interest  was  a  perpetual  rent-charge  on  the  land,  it  was 
held  that  the  vendor  was  not  entitled  to  a  specific  performance. (3) 

(1)  Madeley  i\  Booth,  2  DeG.  &  Sm.  718.  In  the  contract  the  houses  .sold  were 
described  as  held  for  the  residue  of  a  term  of  99  years  from  June  24,1833,  hut 
were  not  expressly  stated  to  be  held  by  an  original  lease.  It  was  further  pi"o- 
vided  that  the  vendee  should  not  call  for  the  lessor's  title,  and  any  error  oi-  mis- 
statement as  to  the  terms  of  years  should  not  vitiate,  but  should  be  the  subject 
of  compensation.  It  turned  out  that  the  title  was  an  under-lease  for  a  term  less 
by  3  days  than  the  99  year.^  gi-anted  by  the  ordinal  lease.  The  vendoi-  sued 
for  a  specitic  performance  offering'  compensation.  The  suit  was  dismissed,  witli 
costs,  by  Knight-Bkucb,  V.  C.  "I  cannot  consider  a  title  under  this  imdei'-lease 
to  be  substantially  the  same  thing  as  an  assignment  of  the  oi-iginal  term  in  the 
property.  Among  the  inconveniences  incident  to  an  under-lease,  as  distinguished 
from  an  assignment  of  the  original  term,  it  is  sufficient  to  mention  that  if  the 
under-tenant  were  to  tender  the  rent  to  the  head  landlord,  he  would  not  be  bound 
io  accept  that  tender.  There  is  no  j)rivity  of  contract,  in  fact  or  in  law,  between 
the  head  landlord  and  the  under-tenant."  See,  however,  in  Darlington  v.  Hamil- 
ton, Kay,  558,  the  observations  of  Page  Wood,  V.  C. 

(2)  Drewe  v.  Corp,  9  Ves.  3i)S  ;  1  S.  &  S.  201,  n  ;  Wright  v.  Howard,  1  S.  &  S. 
190  ;  Barton  v.  Lord  Downes,  1  Flan,  h  K.  505.  As  further  examples  in  England, 
&  vendor  selling  freehold  cannot  compel  tlu;  vendee  to  iiccept  copyhold.  Twining 
•«.  Morrice,  2  Bro.  C.  C.  2G3 ;  Hicks  v.  Phillips,  Prec.  Ch.  575  ;  unle.ss  the  conditions 
of  the  sale  required  him  to  accept ;  see  Price  v.  Macauley,  2  DeG.  M.  &  G.  349  ;  also< 
if  vendee  contracts  for  a  copyhold  estat«^,  he  will  not  be  forced  to  accept  the  land 
if  it  is  partly  freehold.  Ayles  ■?).  Cox,  16  Beav.  23.  But  it  seems  that  if  a  vendor 
has  contracted  to  convey  an  estate  represented  to  be  copyhold  equal  in  value  to 
freehold,  and  the  estate  turns  out  to  be  freehold,  he  can,  nevei-theless,  force  it 
uprm  the  purchaser.  Twining  v.  Morrice,  2  Bro.  C.  C.  326  ;  unless  it  is  expre.ssly 
stipulated  that  the  conti-act  should  be  void,  if  it  appears  that  any  part  of  the 
estate  was  fi-eehold.     Daniels  v.  Davison,  16  Ves.  249. 

(3)  Prendergast  v.  Eyre,  2  Hogan,  81. 

431 


PKRFORMANCE  BY   PLAINTIFF.  419 

The  objection  to  a  difference  in  the  kind  of  interest,  or  of  the  tenure, 
may,  however,  bo  waived  by  the  pnrchaser's  conduct. (1) 

Sec;.  345.  The  following-  are  further  instances  in  which  the  general 
doctrine  has  boon  applied.  If  the  vendor  lias  contracted  to  sell  an 
estate  as  an  entirety,  and  he  is  only  a  tenant  in  common,  or 
other  co-owner,  he  cannot  compel  the  purchaser  to  accept  an  undi- 
vided share  upon  any  payment  of  compensation. (2)  If  the  vendor 
contracts  to  sell  an  estate  in  possession,  he  cannot  obtain  a  specific 
performance  by  conveying  an  estate  in  remainder  after  an  existing 
precedent  life  estate. (3)  The  same  rule  prevails  when  the  vendor's 
estate  is  subject  to  reservations,  or  rights  of  user  in  favor  of  third 
persons,  which  are  necessarily  incumbrances  u})on  the  property,  and 
which  are  not  provided  for  or  mentioned  in  the  contract,  examples  of 
which  are  collected  in  the  note. (4) 

(1)  As,  for  example,  by  his  proceeding  with  the  negotiation  after  learning  the 
true  character  of  tlie  vendor's  interest.  Fordyce  v.  Ford,  4  Bro.  C.  C.  494  ;  Burnell 
V.  Brown,  1  J.  &  W.  168  ;  Martin  v.  Cotter,  3  J.  &  Lat.  496.  But  if  the  vendee 
object,  although  he  may  be  forced  to  complete  the  contract,  yet  he  will  be  entitled 
to  compensation.     Calcraft  v.  Roebuck,  1  Ves.  221. 

(2)  The  rule  is  very  different  from  that  which  controls  the  decision  where  the 
parties  are  reversed.  The  vendee  in  such  case  may  insist  upon  the  vendor's  con- 
veying his  partial  intei-est,  and  the  vendor  cannot  set  up  in  defense  that  he  does 
not^own  the  entirety  ;  but  the  vendor  cannot  force  his  share  upon  an  unwilling  pur- 
chaser. Atty.-Gen.  v.  Day,  1  Ves.  Sen.  218 ;  Roffey  v.  Shallcross,  4  Madd.  227  : 
Dalby  v.  Pullen,  3  Sim.  29  ;  Casamajor  v.  Strode,  2  My.  &  K.  726.  In  Atty.-Gen. 
V.  Day,  tenants  in  common  had  contracted  to  sell  their  whole  estate  ;  one  of  them 
died,  and  it  was  held  that  the  survivors  could  not  force  their  remaining  shares 
upon  the  purchaser.  See,  also,  Erwin  v-  Myers,  10  Wright,  96  ;  Napier  v.  Dar- 
lington, 20  P.  F.  Smith,  64  ;  Clark  v.  Reins,  12  Gratt.  98.  In  Erwin  v.  Myers,  the 
vendor  contracted  to  sell  land,  and  it  turned  out  that  he  owned  only  an  undivided 
share  in  it.  Strong,  J.,  while  holding  that  the  vendee  could  compel  him  to  convey 
what  interest  he  had,  said  :  "  His  (the  vendee's)  jiosition  is  not  to  be  confounded 
with  that  of  a  vendor  praying,  in  equity,  for  a  specific  performance.  There  is  a 
settled  distinction  between  the  two  cases.  If  a  vendor  cannot  make  out  title  to 
the  whole  of  the  subject-matter  of  the  contract,  equity  will  not  compel  the  vendee 
to  perform  pro  tanto. 

(3)  Collier  v.  Jenkins,  Younge,  295  ;  Nelthorpe  v.  Holgate,  1  Coll.  203, 

(4)  An  estate  subject  to  a  right  of  sporting,  Burnell  v.  Brown,  1  J.  &  W.  168  ; 
or  to  a  right  of  digging  for  mines,  Seaman  -».  Vawdrey,  16  Ves.  890  ;  Barton  v. 
Lord  Downes,  1  Flan.  &  Kel.  505 ;  where  the  minerals  are  reserved  to  the  lord  of 
the  manor,  Upperton  v.  Nickolson,  L.  R.  6  Ch.  436  ;  where  the  estate  was  liable 
to  keep  a  chancel  in  repair,  Horniblow  v.  Shirley,  13  Ves.  81,  cited  as  Forteblow 
V.  Shirley,  in  2  Sw.  223  ;  where  the  interest  is  a  mere  sheep-walk  and  not  a  free- 
hold, Vancouver  ■«.  Bliss,  11  Ves.  458  ;  inchoate  dower,  Sehiffer  v.  Pruden,  64  N. 
Y.  47;  [Goodkind  v.  Bartlett  (111  ),  28  N.  E.  Rep.  1045  (Oct.  29,  1894)  ;  covenant 
in  favor  of  other  land-owners  in  the  same  block  that  no  buildings  shall  be  erected 
within  a  certain  number  of  feet  of  the  front  of  the  lot ;  Wetmore  v.  Bruce,  1 18  N. 
Y.  319;  Peabody  Heights  Co.  v.  Willson  (Md.),  33  Atl.  Rep.  385  (June  20,  1895; 
similar  covenant);  Corey  t).  Clarke  (Minn.),  56  N.  W.  Rep.  1063  (mechanics' liens).] 
In  regard  to  a  variety  of  incumbrances,  in  the  nature  of  rents  and  similar 
permanent  charges,  which  are  not  uncommon  tn  England,  although  practically 

432 


420  SPECIF/C   I-KinoiiMASCK    OF  COSTUAl-TS. 

Sec.  346.  lu  all  easels  where  tlie  iMiiclia>er  iiUe^es  that  tlie  estate 
or  interest  wliich  the  vendor  proposes  to  convey  in  i»uisiiance  of  liis 
obligation,  does  not  correspond  with  that  described  in  the  agreement 
and  contracted  to  be  sold,  and,  theretore,  claims  to  bt>  discliarge<l 
entirely  from  all  liability  to  accei)t,  a  court  of  ecpiity  will  inquire 
whether  the  difference  is  so  substantial  and  material  as  to  defeat 
the  vendor  s  remedial  rfglit,  or  whether  it  is  so  immaterial,  incidental, 
or  formal,  that  justice  will  be  done  by  granting  the  relief  with  a  com- 
pensation to  the  purchaser.  A  compensation  even  will  not  be  awarded, 
and  the  vendee  will  be  forced  to  accept  the  interest  which  the  vendor 
has,  if  the  defect  or  variation  is  obvious,  plain,  and  palpable  to  the 
senses,  or  when  the  purchaser  had  actual  notice  of  it  at  the  time  of 
entering  into  the  agreement.(l) 

unknown  in  this  odnntiy,  the  followhig'  points  have  there  been  decided.:  A 
redeemed  land  tax  ^vas  sold,  doscriLed  a  charged  npon  three  houses;  in  fact,  it 
consisted  of  three  distinct  sums,  each  charged  on  a  separate  house  ;  it  was  held, 
that  a  specilic  jjerformance  could  not  be  decreed  against  the  i)urchaser,  since 
there  was  no  basis  for  a  compensation,  Cox  v.  Coventon,  31  Beav.  878  ;  but  where 
land  is  contracted  to  be  sold,  on  which  there  are  undisclosed  (piit-rents,  or  rent 
charges,  if  small  in  amount,  it  seems  they  will  not  prevent  a  siiecitic  iwrformance 
at  the  vendor's  suit,  hut  will,  of  course,  require  compensation,  Esdaileu.  IStephen- 
son,  1  S.  &  S.  12J  ;  Bowles  v.  Waller,  1  Hayes,  441  ;  Prendei-gast  v.  Eyre,  2 
Hogan,  94  ;  Portman  v.  Mill,  1  Russ.  &  Myl.  696  ;  and  if  land  is  sold  as  tithe-fee, 
but  is,  in  fact,  subject  to  a  i-ent-charge  in  place  of  tithes,  the  vendor  can  compel 
the  purchaser  to  accept  with  compensation.     Howland  v.  Norris,  1  Cox,  59. 

(1)  Dyer  v.  Hargrave,  10  Ves.  505  ;  Oldfield  v.  Roand,  5  Ves.  508.;  King  v. 
Bardeau,  5  Johns.  Ch.  38  ;  Clark  v.  Seirer,  7  Watts,  107,  112.  In  King  v.  Bardeau, 
the  vendor  sold  two  lots,  forty-two  and  forty-three,  lying  contiguous  on  a  street 
in  New  York  city,  in  one  parcel,  to  the  same  purchaser.  The  vendee  afterwards 
found  that  the  building  on  lot  forty-two  projected  about  twenty  inches  on  to  lot 
forty-three.  He  claimed  that  this  prevented  him  from  using  the  lot  forty-three  as 
he  purposed  to  do  when  he  purchased,  viz.,  erecting  a  building  on  it  twenty-two 
feet  wide,  with  an  alley  on  one  side  three  feet  wide,  running^from  the  street  to 
the  rear,  and  on  this  ground  he  defended.  Chan.  Kkxt  held,  that  the  defect,  or 
variation,  wtia  jiatent  and  might  ha\e  been  discovereil  by  a  person  of  ordinary 
care,  and  was  not  ground  for  denying  the  vendor's  relief;  but  at  the  same  time 
he  allowed  to  the  vendee  an  abatement  of  the  price  by  way  of  compensation.  In 
Clark  u  Seii-er,  supra,  Gibson,  C.  J.,  applied  the  doctrine  of  open,  obvious  defects 
to  the  case  of  a  pui-chaser  who  knows  that  the  vendor  has  a  w  it'e,  saying,  that  one 
buying  under  such  circumstances,  and  knowing  that  the  wife  has  a.  dower  interest, 
and  that  she  cannot  be  compelled  to  release  it,  takes  ujion  himself  the  risk  of  th.^ 
wife's  refusal  to  join  in  the  husband's  deed,  and  must  accept  the  vendor's  con- 
veyance without  a  release  of  (hnver.  See,  also,  sus  to  the  effect  of  notice,  James  1'. 
Lichfield,  L.  R.  9  Eq.  51  ;  Caballero  r.  Henty,  L.  R.  9  Ch.  447.  If  the  land  is 
su1)ject  to  prior  outstanding  rights  in  favor  of  third  pei-.sons,  such  as  ea.semonts, 
liens,  and  the  like,  and  this  fact  was  known  to  the  vendee  at  the  time  of  the  con- 
tract, he  must  take  the  land,  even  when  thei-e  is  a  specific  enforcement,  in  its 
existing  condition  subject  to  such  equities  and  rights.  Smoot  v.  Rea,  19  Md.  3.tS  ; 
Smith  V.  C]-andall,  20  Md.  482  ;  Lavei-ty  v.  Moore,  33  N.  Y.  658 ;  Himter  v.  Bales, 
24  Ind.  299  j  Dean  v.  Comstock,  32  111.  173  ;  [Newark  Sav.  Inst.  v.  Jones,  37  N.  J. 
Eq.  449.] 

4iia 


PERFORMANCE  BY  PLAINTIFF.  421 

Defect  of  vendor's  title. 

Sec.  347.  Intimately  connected  with  the  case  last  discussed,  and 
perhaps,  hardly  to  be  distinguished  from  it,  is  that  of  a  failure, 
total  or  partial,  of  the  vendor's  title.  As  a  part  of  the  doctrine 
that  the  plaintiff  must  perform  all  the  material  terms  of  the  agree- 
ment on  his  part,  the  general  rule  is  settled  that  a  vendor  who 
has  entered  into  an  entire  contract,  cannot  enforce  a  specific  per- 
formance u}H)u  an  unwilling  purchaser,  unless  he  has  a  good  title  to 
the  whole  subject-matter,  and  to  every  part  of  it.  In  other  words, 
the  failure  or  defect  of  his  title  either  to  the  whole  land  or  to  a  part 
of  it,  is  a  sufficient  ground  for  refusing  the  remedy  which  he  seeks= 
Compensation  will  not,  in  general,  obviate  the  objection,  for  a  pur- 
chaser cannot  equitably  be  compelled  to  pay  a  smaller  price  for  a  sub- 
ject-matter which  he  did  not  agree  to  buy.(l)  But  this  rule  is  not 
absolutely  universal.  When  the  vendor  is  unable  to  make  title  to  a 
very  small  part  of  the  land,  and  such  portion  is  not  material  to  the 
purchaser's  possession  and  enjoyment  of  the  property,  so  that  the 
deficiency  is  susceptible  of  compensation,  a  specific  performance  will 
be  geanted  to  the  vendor  with  compensation  to  the  vendee. (2)     But 

(1)  King'  V.  Knapp,  59  N.  Y.  462 ;  Hoover  v.  Calhoun,  16  Gratt.  109  ;  Jackson  v. 
Ligon,  3  Leigh,  161  ;  McKean  v.  Read,  6  Litt.  395  ;  Bryan  v.  Read,  1  Dev.  & 
Bat.  Ch.  78;  Reed  v.  Noe,  9  Yerg.  283  ;  Cunningham  v.  Shai-p,  11  Humph.  116, 
121  ;  Buchanan  v.  Alwell,  8  Humph.  516  ;  Hepburn  v.  Auld,  5  Cranch,  262  ;  Vree- 
land  V.  Blauvelt,  23  N.  J.  Eq.  483  ;  Dobbs  v.  Norcross,  24  N.  J.  Eq.  327  ;  JeflFries 
«,  Jeffries,  117  Mass.  184  ;  [Palmer  v.  Morrison,  104  N.  Y.  132 ;  Forster  r.  Win- 
field,  142  N.  Y.  327  ;  Smith  v.  Taylor,  82  Cal.  533]  ;  but  a  mere  possibility  of  a 
defect  is  not  such  a  failure  of  title  as  will  defeat  the  vendor's  suit.  Hayes  v. 
Harmony  Grove  Cemetery,  108  Mass.  400. 

(2)  McQueen  v.  Farquhar,  11  Ves.  467  ;  KnatchbuU  v.  Grueber,  1  Madd.  153 ; 
Bowyer  v.  Bright,  13  Price,  698  ;  Carver  v.  Richards,  6  Jar.  (N.  S.)  667 ;  Stoddart 
-u.  Smith,  5  Binney,  355  ;  Foley  v.  Crow,  37  Md.  51.  In  the  latter  case  it  was 
said  :  "  Where  a  vendor  is  unable,  from  any  cause  not  involving  mala  fides  on 
his  part,  to  convey  each  and  evei-y  parcel  of  the  land  contracted  to  be  sold,  and 
it  is  apparent  that  the  part  that  cannot  be  conveyed  is  of  small  importance,  or  is 
immaterial  to  the  purchasei-'s  enjoyment  of  that  which  may  be  conveyed  to  him, 
in  such  case  the  vendor  may  insist  on  performance  with  compensation  to  the  pur- 
chaser, or  a  proportionate  abatement  from  the  agreed  price  if  that  has  no-t  been 
paid."  This  mode  of  apportioning  relief  has  sometimes  been  carried  to  a  great 
extent,  far  beyond  the  rule  as  now  generally  accepted.  In  Shireley  v.  Davis, 
cited  6  Ves.  678,  a  vendee  had  contracted  for  a  house  and  a  wharf— the  vendor's 
title  to  the  wharf  failed,  and  yet  the  court  compelled  the  vendee  to  take  the  house, 
although  it  appeared  that  he  wanted  the  wharf  to  carry  on  his  business.  This 
decision  has  been  repeatedly  disapproved,  and  is  not  good  law.  See  1  Cox,  61, 
€2  ;  6  Ves.  679  ;  13  Ves.  78.  228,  427  ;  Stewart  v.  Alliston,  1  Meriv.  26  As  a  fair 
illustration  of  an  immaterial  failure  admitting  compensation,  see  Stewart  v. 
Marquis  of  Conyngham,  1  Ir.  Ch.  Reji.  534.  The  cont)-act  stated  that  the  timber 
on  the  estate  would  be  included,  but  the  title  to  the  timber  on  a  small  part  of  the 
land  failed.     There  being  no  misrepresentation,  the  court  allowed  a  specific  per- 

434 


422  SPECIFIC   PKNFOh'.VAyCK    OF  COXTRACTS. 

this  exception  is  voiy  limited.  If  tlie  title  fails  to  a  portion  of  the 
laud,  however  small,  which  is  material  to  the  vendee's  possession  and 
enjoyment  of  tlie  remainder  to  which  tith^  can  be  made,  th<>  \ cinlor 
must  fail  of  obTaining'  a  si)ecilic  iK'rf"()vmance.(l) 

iSec.  34b.  Where  a  contract,  in  addition  to  the  main  and  substantial 
subject-matter  for  which  a  certain  price  is  specified — as  for  example, 
an  estate — includes  also  something  as  an  adjunct  wliich  is  small  in 
value,  and  not  material  to  tlie  use  and  enjoyment  of  the  main  subject- 
matter,  the  failure  of  the  vendor's  title  to  this  adjunct,  or  his  inability 
to  convey  it,  will  not  prevent  him  from  compelling  a  specific  i)er- 
formance  in  respect  of  the  principal  subject-matter.(2)  "Whenever, 
however,  the  adjunct  is  necessary  to  the  full  use  and  enjoyment  of 
the  main  subject-matter,  the  vendor's  inability  to  convey  it  will 
defeat  his  right  to  a  specific  enforcement,  even  with  compensation. (3) 
If  a  vendor  who  contracted  to  give  a  good  title  to  all  the  land 
embraced  in  the  agreement,  alleges  in  his  bill  of  complaint  that  he 

fonnance  with  compensation.  See,  also,  Magennist'.  Fallon,  2  MoUoy,  500  ;  Shaw 
1'.  Vincent,  64  N.  C.  690  ;  Davison  v.  Pei-rine,  7  C.  E.  Green,  87. 

(1)  Shackleton  v.  Sutcliffe,  1  DeG.  &  Sm.  609  ;  Perkins  v.  Ede,  16  Beav.  193  ; 
Peers  v.  Lambert,  7  Beav.  546.  In  the  last  case  the  vendor  agreed  to  sell  a  wharf 
on  the  Thames,  with  a  jetty.  This  jetty  was  liable  to  be  removed  by  the  corpoi-a- 
tion  of  London,  if  they  thought  fit.  The  M.  R.,  Lord  Langdale,  held  that  the 
jetty  was  necessary  to  the  use  and  (nijoyment  of  the  wharf,  and  refused  to  decree 
a  specific  perfoi-mance  which  would  only  convey  a  good  title  to  the  wharf.  See, 
also,  Howard  v.  Kimball,  &7)  N.  C.  175 ;  Griffin  v.  Cunningham,  19  Gratt.  571  ; 
Taylor  v.  Williams,  45  Mo.  80  ;  Shaw^  v.  Vincent,  64  N.  C.  690 ;  Smith  •«.  Turner, 
50  Ind.  367  ;  Havens  v.  Bliss,  26  N.  J.  E(i.  363 ;  Botsford  v.  Wilson,  75  111.  132  ; 
Hinkle  v.  Margerum,  50  Ind.  240 ;  Gregory  v.  Pei'kins,  40  Iowa,  82  ;  Davison  v. 
Perrine,  7  C.  E.  Green,  87  ;  Walsh  v.  Barton,  24  Ohio  St.  28  ;  Holland  v.  Holmes, 
14  Flor.  390  ;  Page  v.  Greeley,  75  111.  400  ;  Bogan  v.  Daughdrill,  51  Ala.  312. 
There  are  cases  which  hold  that  the  vendee  cannot  set  up  the  defense  of  a  defect 
in  the  vendor's  title,  as  long  as  he  is  in  possession  of  the  land  ;  in  other  words, 
that  he  can  only  rely  upon  such  defect  as  a  ground  for  a  rescission  and  abandon- 
ment of  the  contract.  See  Campbell  v.  Medbury,  5  Biss.  33;  Sawyer  tJ.  Sledge, 
65  Geo.  152  ;  Garrett  d.  Lynch,  45  Ala.  204.  This  is  undoubtedly  the  cori-ect  i-ule 
if  the  vendee  wishes  to  rescind  the  contract;  he  must  then  act  without  delay, 
and  cannot  claim  to  retain  any  benefits  of  the  contract  and  to  repudiate  its  bur- 
dens. But  the  rule  is  certainly  inconsistent  with  those  decisions,  which  are 
numerous,  permitting  the  vendee  to  i-etain  the  land  and  the  benefits  of  the  con- 
tract, and  at  the  same  time  demand  and  receive  compensation  for  some  defect  or 
pai'tial  failui-e  of  the  vendor's  title  or  of  the  subject-matter. 

(2)  See  cases  in  last  preceding  note  ;  also  Richardson  v.  Smith,  L.  R.  5  Ch.  648  ; 
Stewart  1).  Motcalf,  68  111.  109. 

(3)  As  for  instance,  where  the  main  subject-matter  is  a  public  hon.^<*,  and  the 
adjunct  is  its  fixtures  and  furniture,  which  are,  of  course,  ess(,Mitial  to  the  benefi- 
cial use  of  the  building  as  a  jriMie  Jiause.  Darbey  v.  Whittaker,  4  Di'ow.  134  ; 
Jackson  V.  Jackson,  1  Sm.  &  Gif.  184. 

435 


PERFORMANCE  BY  PLAINTIFF.  423 

can  make  out  a  good  title  to  all,  it  seems  that  the  least  defect  or 
failure  of  title  will  be  sufficient  to  prevent  hira  from  obtaining  a  decree, 
even  with  compensation  to  the  purchaser. (1) 

ISec.  349.  A  purchaser  may,  by  his  o"wn  act,  remove  all  objec- 
tion to  the  vendor  s  defect  of  title,  and  cut  himself  off  from  setting' 
up  that  defect  as  a  defense.  This  is  so  where  the  vendor  is  unable  ta 
make  out  a  good  title  to  the  land,  or  a  part  of  it,  which  he  has  agreed 
to  sell,  on  account  of  some  outstanding  title  in  a  third  person,  and  the 
purchaser  has  himself  brought  up  that  outstanding  title,  or  in  some 
manner  has  become  vested  with  it ;  such  purchaser  being  thus  able  to 
complete  the  vendor's  title,  cannot  rely  on  the  vendor's  inability,  and 
will  be  compelled  to  perform,  although  he  may  be  allowed  the  expense 
to  which  he  has  been  put  in  obtaining  the  outstanding  title  (2)  8uch 
cases  are  not  very  likely  to  occur  in  this  country,  except  in  the  instance 
of  outstanding  liens  and  incumbrances,  such  as  mortgages,  dower 
rights,  and  the  like.  If  a  vendee  should  purchase  the  mortgage,  or 
buy  up  the  dow^er  right,  his  case  would  plainly  fall  within  the  above 
principle,  and  he  should  be  allowed  the  amount  paid  for  his  purchase. 

Skc.  350.  I  have  collected  in  the  foot-note  a  number  of  recent  cases, 
illustrating  the  foregoing  doctrine  concerning  the  failure  of  vendor's. 

(1)  In  Ashton  v.  Wood,  3  Sm.  &  Gif.  436,  the  vendor  agreed  to  give  a  good  title 
to  all  the  lands,  and  the  contract  expressly  provided  that  compensation  should  be 
given  for  any  errors  in  the  amount  or  dimensions  of  the  land ;  title  failed  to. 
l-330th  part,  which  was  not  essential  to  the  enjoyment  of  the  remainder ;  but  the 
bill  alleged  that  the  plaintiff  (vendor)  could  make  a  good  title  to  all;  Held,  the 
plaintiff  was  not  entitled  to  a  specific  performance  with  compensation. 

(2)  Murrell  v.  Goodyear,  2  Giff.  51  ;  1  DeG.  F.  &  J.  432  ;  Peter  v.  Nicolls,  L.  R. 
11  Eq.  391 ;  Hume  v.  Pocock,  L.  R.  1  Eq,  662.  In  Hume  v.  Pocock,  the  master 
had  reported  that  vendor  could  not  make  a  good  title  :  but  it  appeared  fi-om  the 
evidence  that  the  vendee  (the  defendant),  had,  since  the  contract,  by  his  own 
act,  acquired  the  means  of  curing  the  defect  and  perfecting  the  title,  and,  there- 
fore, the  defendant  could  not  rely  on  the  defect  as  a  defense,  and  plaintiff  was 
permitted  to  amend  his  bill.  In  Peter  v.  Nichols,  supra,  a  vendor's  suit,  the  pur- 
chaser set  up  a  voluntary  settlement  made  by  the  plaintiff  as  a  defense,  but 
alleged  his  willingness  to  complete  on  receiving  a  good  title.  He  had  been  put 
into  possession  as  vendee,  had  paid  part  of  the  price,  had  paid  off  a  mortgage 
and  obtained  a  conveyance  of  the  legal  estate  and  possession  of  the  title  deeds.  Held, 
that  defendant  had  a  sufficient  title,  and  plaintiff  should  have  a  decree.  In  Mur- 
rell V.  Goodyear,  supra,  there  was  an  outstanding  legal  title  which  was  a  defect, 
and  the  defendant— the  vendee— after  objecting  to  the  plaintff' s  title,  and  giving 
notice  of  intention  to  rescind,  secretly  bought  up  this  outstanding  title,  and  it 
was  held  that  he  had  obviated  all  objection  and  was  bound  to  complete.  See,  also, 
Weems  v.  Brewer,  2  Har.  &  Gill.  390  ;  Westall  v.  Austin,  5  Ired.  E<i.  1 ;  Kindley  v. 
Gray,  6  Ired.  E(i,.  44.-);  [Canton  Co.  v.  B.  &  O.  Ry.  Co.  (Md.),  29  Atl  Rep.  821, 
(June  21,  1894.)  In  Benall  v.  Gray,  80  N.  Y.  517,  the  agreement  was  for  the 
transfer  of  certain  tax  leases,  which  were  invalid,  so  that  the  plaintiffs  could  not 
transfer  a  good  title ;  subsequent  to  the  agreement  the  vendee  received  a  con- 
veyance from  the  owner  in  fee  ;  it  was  held,  however,  that  the  defect  in  plaintiff's 
title  was  not  thereby  cured,  as  the  title  so  acquired  by  the  plaintiffs  was 
different  from  and  hostile  to  that  which  the  plaintiffs  undertook  to  convey.  J 

436 


424  SPECIAL     PERFORMANCR    OF  CO y TRACTS. 

title,  in  some  of  which  the  title  wag  lield  suflicient,  and  in  others 
insufficient,  f(ir  a  decree  of  specific  perforniance.(l) 

Failure  of  title  to  one  or  more  of  separate  lots. 

Hec.  aSl.  "When  the  vendor  s(^lls  two  or  niorci  estates  or  lots  at  one 
time,  and  for  one  sum,  the  contract  is  entire,  unless  there  should  be 
some  express  clause  making  it  separable, 'and  the  failure  of  the  title 
to  one  of  the  estates  or  lots  is  a  complete  bar  to  the  vendor's  enforcing 
a  performance  upon  the  purchaser  as  to  the  others,  to  which  the  title 
is  good.     The  reason  for  this  rule  is  that  the  court  will  nut,  and  indeed 

(1)  i^ales  by  trustees. — Tolson  v.  Sheard,  L.  R.  5  Ch.  D.  19.  The  plaintifTs, 
trustees,  held  two  estates  on  distinct  trusts,  and  made  one  mining'  lease  of  the  two 
estates.  Held,  that  they  had  no  power  to  make  such  a  lease,  and  a  specific  per- 
formance at  their  suit  refused.  Query. — Whether  a  lease  by  trustees  by  one  demise 
of  two  estates  held  upon  distinct  trusts,  is  not  a  breach  of  trust,  per  Hall,  V.  C, 
and  Court  of  Appeals  ;  Morris  v.  Debenham,  L.  R.  2  Ch.  D.  540.  A  trustee 
having'  a  discretionary  trust  vnider  a  will  to  sell  laud  at  such  a  price  as  he  should 
see  tit,  with  power  to  postpone  the  sale,  leased  the  land  for  thirty  yeai-s,  with  the 
concui-rence  of  the  beneficiaries.  Before  the  lease  expired  the  land  was  put 
up  for  sale  by  the  trustee  and  the  lessee  jointly — all  the  facts  being'  fully  disclosed 
in  the  particuhirs  of  sale — a  sale  was  effected,  and  the  iiurchase-niouey  was  then 
apportioned  between  the  two  interests  (the  trustee  and  the  lessee)  according  to  the 
valuation  of  a  skilled  valuer.  Held,  the  vendee,  in  a  suit  by  the  vendors,  could 
not  insist  on  the  concurrence  of  the  beneficiaries  on  account  of  the  apportionment 
not  having  been  made  before  the  sale,  and  he  was  bound  to  take  the  title. 
Cavendish  v.  Cavendish,  L.  R.  10  Ch.  319.  Two  lots  belonging  to  the  sanie  estate, 
but  held  under  separate  trusts,  wei-e  sold  together  foi"  one  lump  sum,  by  order  of 
the  court  in  an  administration  suit,  and  the  proceeds  were  brought  into  court. 
Vendee  objected  to  the  title  because  no  order  for  apportiomnent  of  the  proceeds, 
between  the  two  different  trusts,  had  been  made  before  the  sale.  Held,  objection 
was  groundless  since  the  money  was  in  the  custody  of  the  court,  which  would 
control  its  disposition.  See,  also,  Rede  v.  Oakes,  4  DeG.  J.  &  S.  505.  Constructive 
notice  to  tlie  purchaser  of  defect  in  the  title. — Caballero  v.  Henty,  L.  R.  9  Ch.  447. 
A  public  house  was  offered  for  sale,  the  conditions  of  sale  stating  that  it  wa.s  "  in 
the  occupation  of  a  tenant."  A  brewer  bought  it  foi*  the  pui-pose  of  using  it  for 
the  sale  of  his  beer.  He  afterw-ards  found  that  it  was  held  by  another  brewer 
under  a  lease  which  had  yet  eight  years  to  run.  Held,  on  appeal  aflirming  the 
decision  of  Jesskl,  M.  R.,  that  the  vendee  was  not  bound  to  ascertain  the  terms  of 
the  tenancy  from  the  tenant  in  occupation — i.  e.,  the  language  of  the  conditions 
was  not  a  constructive  notice — and  as  the  title  was  defective  the  vendor  could  not 
force  it  ujiou  the  purchaser.  James  v.  Lichfield,  infra,  was  commented  upon  and 
disapproved.  It  was  also  said,  that  the  doctrine  of  Daniels  v.  Davison,  IG  Ves. 
249,  does  not  apply  as  between  the  vendor  and  the  vendee  while  the  matter  still 
rests  in  the  contract ;  it  refers  only  to  equities  between  the  vendee  and  the  tenant 
aftei"  the  legal  estate  has  passed  to  the  vendee.  James  V.  Lichfield,  L.  R.  9  Eq. 
51,  per  Lonl  Romilly,  M.  R.,  was  not  a  vendor's  suit,  and  is,  therefore,  not 
exactly  in  ]»oint,  but  it  has  a  direct  bearing  on  the  cjueslion.  Vendor  agri'ed  to 
sell  certain  land  which  vendee  knew  to  l>e  in  the  o<'cui)ation  of  a  tenant,  and 
afterwards  discovered  to  be  held  umlei-  a  lease  for  twenty-one  years.  Vendee 
.sued  for  a  s^iecitic  pei-foi'mance,  with  compensation.  Held,  that  vendee  was 
affected  with  notice  of  the  true  state  of  the  title,  and  was  not,  therefore,  entitled  to 

437 


PERFORMANCE  BY  PLAINTIFF.  425 

cannot,  make  an  apportionment  of  the  whole  price  among  the  lots,  and 
determine  what  amount  shall  be  charged  to  those  whose  title  is  good^ 
and  what  to  those  of  which  the  title  has  failed,  so  as  to  bind  an 
unwilling  purchaser.(l)  On  the  other  hand,  if  several  distinct  estates 
are  sold  for  separate  and  distinct  prices,  a  separate  price  to  each  lot, 
although  sold  at  the  same  time,  and  much  more  if  sold  at  different 
times,  the  contract  is  divisible,  unless  there  is  a  clear  intention,  from 
its  language,  that  it  is  to  be  entire ;  and  the  failure  of  the  vendor's 
title  to  one  or  more  of  the  lots  or  estates  does  not  prevent  him  from 
compelling  a  specific  performance  in  respect  of  the  others,  to  which  his 
title  is  good.  The  difficulty  in  the  former  case  does  not  exist  in  this, 
for  the  parties  have  themselves  made  an  apportionment  of  the  price. (2) 

any  compensation — i.  e.,  abatement  from  the  price.  This  decision  can  hardly  be 
supported  under  the  criticism  of  the  preceding  case.  See,  also,  as  having-  some 
bearing,  Hughes  v.  Jones.  3  DeG.  F.  &  J.  307.  In  Jeffrys  v.  Fairs,  L.  R.  4  Ch.  D. 
448,  a  specific  performance  was  enforced  against  the  vendee,  although  the  main 
subject-matter  (a  vein  of  coal)  failed,  because  he  had,  in  reality,  bought  whatever 
interest  the  vendor  had  ;  both  contracted  in  equal  ignorance,  and  defendant  took 
his  chance  of  what  there  was  of  minerals  under  the  surface.  Misdescription  and 
mistake.— De^nnj  v.  Hancock,  L.  R.  6  Ch.  1,  a  misdescription  or  mistake  as  to 
what  was  included  in  the  property  sold,  which  was  held  to  be  the  plaintiff's  fault. 
The  court  said,  if  a  vendee  insists  upon  something  connected  with  the  conveyance 
with  which  the  vendor  refuses  to  comply,  and  the  vendpe  thereupon  assumes  to 
rescind,  and  the  court  holds  that  vendee  was  right  in  his  contention,  Query, — 
whether  a  specific  performance  would  ever  be  decreed  against  the  unwilling 
vendee,  with  compensation.  And  see  Baskcomb  v.  Beckwith,  L.  R,  8  Eq.  100  ; 
Phillipson  v.  Gibbon,  L.  R.  6  Ch.  426  ;  Minton  v.  Kirwood,  L.  R.  3  Ch.  614  ; 
1  Eq.  449. 

(1)  Prendergast  v.  Eyre,  2  Hogan,  89 ;  Cunningham  v.  Sharp,  11  Humph.  116  j 
[Mott  V.  Mott,  68  N.  Y.  246.] 

(2)  Poole  V.  Shergold,  2  Bro.  C.  C.  118 ;  1  Cox,  273 ;  Lewin  v.  Guest,  1  Russ. 
325  ;  Harwood  v.  Bland,  1  Flan.  &  Kel.  540 ;  Casamajor  v.  Strode,  2  My.  &  K. 
724.  It  must  be  understood  that  the  lots  or  estates  are  really  distinct  and  sepa- 
rate. The  rule  will  not  ajiply,  but  the  general  doctrine  will  control,  if  the  portion 
to  which  the  title  fails  is  the  really  important  jiart  of  the  purchase,  or  is  mate- 
rial to  the  beneficial  use  and  enjoyment  of  the  residue.  Thus,  in  Poole  v.  Sher- 
gold, supra,  several  lots  were  thus  sold,  and  the  title  failed  as  to  two  of  them. 
Lord  Kenyon,  M.  R.,  said  he  must  take  it  for  granted  that  the  two  lots  were  not 
so  complicated  with  the  others  as  to  entitle  the  purchaser  to  resist  the  whole ;  but 
he  added  :  "  If  a  purchase  was  made  of  a  mansion-house  in  one  lot,  and  farms, 
etc.,  in  others,  and  no  title  could  be  made  to  the  lot  containing  the  mansion-house^ 
it  would  be  a  ground  to  rescind  the  whole  contract,"  [See,  also,  Shriver  v. 
Shriver,  86  N.  Y.  575,  585,  where  two  lots  were  purchased,  and  botk 
were  necessary  for  the  vendee's  purposes.]  In  Foley  ■».  Crow,  37  Md.  51, 
four  lots  had  been  thus  sold,  and  title  failed  as  to  one,  and  this  was  held  not 
to  impair  the  contract  respecting  the  other  three,  there  being  no  evidence  to  show 
that  the  three  were  in  themselves  any  less  valuable  by  the  loss  of  the  fourth.  In 
Stoddart  v  Smith,  5  Binney,  355,  defendant  had  agreed  to  purchase  forty-five 
lots  in  different  parts  of  Washington,     The  contract  in  respect  to  all  was  made  at 

438 


426  SPECIFIC    PERFORMANCE    OF   CtO.\TUACJS. 

In  connection  with  the  rule  last  stated,  it  is  settled,  l»y  the  wei^^ht  of 
authority,  that  where  lots  are  sold,  cither  one  after  another,  or  at  the 
same  time  unoflatu,  for  separate  and  distinct  sums,  the  coutract  is,  in 
respect  to  its  specilic  enforcement,  prima  facie  divisible  as  to  eacli  lot — 
that  is,  the  sale  of  each  lot  constitutes  a  separate  contract,  and  a 
failure  of  title  to  one  or  more  will  not  be  an  obstacle  to  an  enforce- 
at  the  suit  of  the  vendor  as  to  the  remain(ier.(l) 

Deficiency  in  the  quantity  or  amount  of  the  subject-matter. 

kSiiC  o52.  Where  the  sale  is  by  metes  and  bounds,  or  in  any  other 
analogous  manner  by  which  the  ])articular  subject-matter  is  identified, 
and  the  purchaser  received  the  very  parcel  which  he  intended  to  buy, 
and  there  has  been  no  misleading  conduct  on  the  vendor's  part,  a  deli- 
ciency  in  the  supposed  amount  will  not  prevent  an  enforcement  of  the 
contract,  uidess  it  should  be  so  very  great  as  to  destroy  or  defeat  the 
whole  object  of  the  purchase,  and  render  the  agreement  a  virtual  nul- 
lity. It  may,  perhaps,  entitle  the  purchaser  to  some  abatement  from 
the  price,  but  this  only  in  exceptional  cases,  where  there  was  a  clear 
mistake. (2)  But  if  the  vendor  misrepresents  or  misstates  the  amount 
of  the  land,  whether  the  price  be  estimated  at  so  much  per  acre  or 

one  time,  and  was  entire,  except  that  each  lot  was  valued  separately  in  a  list 
annexed  to  the  agreement.  Title  failed  as  to  five  (5),  and  this  was  held  to  consti- 
tute no  defense  to  the  vendor's  enforcing-  a  specific  performance  in  resi)ect  to  the 
others.  Tilchman,  C.  J.,  said  :  "  It  has  been  contended  that  the  contract  was 
so  entire  as  to  be  incapable  of  division,  and  that  a  failure  as  to  part  dissolved  the 
contract  in  the  whole.  It  strikes  me  very  differently.  Thei*e  are  ciu^es  when 
failure  of  title  to  part  ought  to  dissolve  the  whole  conti-act,  because  that  part  may 
be  so  e.ssential  that  the  lo.ss  of  it  would  render  the  residue  of  little  value.  Such 
would  be  the  case  of  the  loss  of  a  mine,  or  of  a  valuable  fishery,  attached  to  a  par- 
cel of  poor  land.  Such,  also,  might  be  the  case  of  a  loss  of  a  parcel  of  meadow  or 
woodland,  or  of  the  right  of  water  necessary  for  the  turning  of  a  mill.  The  pnn- 
ciple  is  this,  that  when  the  part  lost  appears  to  be  so  essential  to  the  residue  that 
it  cannot  reasonably  be  supposed  the  purchase  would  have  been  made  without  it, 
the  contract  is  dissolved  in  toto.  [Note. — These  genei-al  remarks  must  be  taken 
in  connection  with  the  facts  of  the  cases.  If  applied  to  a  contract  for  one  entire 
tract,  they  would  be  misleading,  as  restricting  too  much  the  power  of  the  vendee 
to  refuse  to  perform.]  But  what  is  the  case  under  consideration?  The  loss  of 
five  lots  not  adjoining,  or  particulai-ly  connected  with  the  others.  There  was  no 
evidence  of  their  being  in  any  way  essential  to  the  use  or  full  enjoyment  of  the 
residue  ;  and  as  the  pi-ice  at  which  each  of  the  lots  was  estimated  in  the  contract 
was  proved  on  the  trial,  there  could  have  been  no  difficulty  in  making  a  propej* 
deduction." 

(1)  Casamajor  v.  Strode,  2  My.  &  K.  724  ;  Lewin  v.  Guest,  1  Russ.  325  ;  Osborne 
t).  Bremar,  1  Dessaus.  48 J  ;  Wliite  v.  Dobson,  17  Gratt.  262  ;  Stoddart  v.  Smith,  5 
Bin.  355. 

(2)  See  Kent  v.  Carcaud,  17  Md.  291  ;  Foley  v.  McKeown.  4  Leigh.  (;27. 

439 


PERFORMANCE  BY  PLAINTIFF.  427 

not,  the  vendee  is  entitled  to  compensation  for  the  deflciency.(l) 
Where  the  amount  of  the  land  irf  isaid  to  be  "  or  of  about "  so  many 
acres,  or  as  containing  so  many  acres,  or  such  and  such  an  amount,  "  be 
the  same  more  or  less,"  or  with  words  to  that  effect,  and  the  vendor 
has  not  know'ingly  misled  the  purchaser,  the  rule  is  different  in  the 
two  cases  of  an  executed  and  an  executory  contract.  If  the  sale  has 
been  consummated  by  a  conveyance,  a  deficiency  in  the  amount 
stated,  even  if  considerable,  does  not,  as  it  appears,  entitle  the  grantee 
to  any  relief  by  way  of  abatement. (2)  If,  however,  the  contract 
remains  unexecuted — i.  e.,  as  a  mere  contract — the  vendee  can  have 
a  proportionate  abatement,  unless  the  deficiency  is  very  small. (3) 
These  cases  assume  that  the  vendor  has  been  wholly  free  from  any 
inequitable  conduct.  But  if  he  knew  the  real  quantity,  and  there- 
fore that  the  amount  stated  was  incorrect,  the  addition  of  any  such 
limiting  or  comprehensive  clauses  will  not  remove  his  liability  to  make 
a  proper  abatement  from  the  stipulated  price. (4)  A  very  large  defi- 
ciency, where  the  vendee  has  not  been  negligent,  and  cannot  be 
supposed  to  be  acquainted  wath  the  real  facts,  will  entitle  hira  to  a 
compensation,  even  in  the  face  of  an  express  provision  cutting  off*  his 
claim  to  an  allowance.  Land  was  sold  at  auction  described  as  con- 
taining 753  square  yards  or  thereabouts,  and  one  provision  of  the  con- 
tract stipulated  that  if  any  error,  misstatement,  or  omission  in  the 
description  should  be  discovered,  it  should  not  annul  the  sale,  nor 
should  any  compensation  be  allowed.  The  land  was  found  to  contain 
only  573  square  yards.  Held,  that  the  stipulation  applied  only  to 
small  errors,  and  did  not  cover  such  a  large  deficit,  and  the  purchaser 

(1)  Sir  Cloudesley  Shovel  v.  Bog-an,  2  Eq.  Cas.  Ahr.  688,  pi.  4  ;  Hill  v.  Buckley, 
17  Ves.  394 ;  In  re  Gore's  Estate,  8  Ir.  E(i.  Rep.  260 ;  Stockton  v.  Union  Oil  Co.,  4 
W.  Va.  273,  a  sale  of  2,000  acres  at  ^25  ]ier  acre  ;  a  deticiency  of  39  acres,  held, 
entitled  vendee  to  an  abatement  according-  to  the  price  (§2.o)  per  acre  ;  and  see 
Howard  v.  Kimball,  65  N.  C.  175. 

(2)  Troyford  r.Wareup,  Rep.  Temp.  Finch,  310  ;  Anon.,  2  Freem.  Ch.  106  ;  Lord 
Townshend  v.  Stangi-oom,  6  Ves.  328. 

(3)  Hill  J).  Buckley,  17  Ves.  394  ;  Portman  v.  Mill,  2  Russ.  570 ;  Day  v.  Fynn, 
Owen,  133  ;  In  re  Egan's  Estate,  6  Ir.  Jur.  (N.  S.)  90  ;  In  re  Browne's  Estate,  5  Ir. 
Jur.  (N.  S.)  185.  But  in  Winch  v.  Winchester,  1  V.  &  B.  375,  the  land  beingf 
tlescribed  as  containing  by  estimatUm  41  acres,  be  the  same  more  or  less,  there 
was  a  deficiency  of  five  acres  and  a  fraction.  Sir  Wm.  Grant,  M.  R.,  held  the 
vendee  not  entitled  to  any  deduction. 

(4)  Winch  7).  Winchester.  1  V.  &  B.  375,  773  ;  Duke  of  Norfolk  v.  Worthy,  1  Camp 
Ca.  337.  In  King  v.  Knapp,  59  N.  Y.  462,  the  vendor  did  not  disclose  a  matenal 
defect  within  his  knowledge,  and  this  was  held  to  defeat  his  right  to  enforce 
performance  upon  the  vendee,  although  the  description  contained  the  words 
"  more  or  less." 

440 


428  SPECIFIC   PERFORMANCE    OF  COSTRACTS. 

was  entitled  to  an  abatement.(l)  And  it  will  n(tt  be  inferretl  that 
the  vendee  had  notice  or  knowledge  of  the  real  amount  or  true 
lueasureiuent  of  the  land  in  question,  so  as  to  cut  off'  liis  right  to  a 
comi)ensation  for  a  deficiency,  because  he  was  familiar  with  the  pro[)- 
erty,  or  even  IxH-ause  ht^  had  been  or  was  an  occupant  of  it. (2)  Where 
the  amount  of  the  land  is  much  greater  t,han  that  describt'd  in  tlie 
contract,  and  there  is  a  slipuhitiou  for  compiMisatinn  in  the  event  of  a 
misdescription,  the  vendee  can  comjiel  a  conveyance  of  the  whole  by 
paying  the  compensation,  but  the  vendor  cannot  compel  the  purchaser 
to  perform  by  accepting  the  whole  and  paying  au  enhanced  price  by 
way  of  compensation,  for  the  luisdescription  is  the  vendor's  own  act.(3) 

When  objections  to  vendor's  title  may  be  made. 

iSec.  353.  According  to  the  English  chancery  practice  in  suit  for 
specific  performance,  objections  to  the  title  may  be  raised  by  the 
vendee  for  the  first  time  on  the  inquiry  as  to  title  after  the  decree, 
unless  a  provision  is  inserted  in  the  decree  expressly  cutting  off  or 
limiting  the  defendant.  If  the  vendor  wishes  to  prevent  objections 
which  have  been  waived  or  passed  over  in  silence  from  being  thus 
raised  on  the  inquiry  concerning  title,  he  should  ask  at  the  hearing 
for  the  insertion  of  a  direction  to  that  effect  in  the  decree.  When 
the  decree  directs  in  general  terms  an  inquiry  as  to  the  title,  it  means 
a  good  title  having  regard  to  the  terms  of  the  contract.{4) 

Affirmative  acts  of  the  plaintiff  in  violation  of  the  contract. 

>Sec.  o54.  If  the  plaintiff's  simple  negative  conduct,  his  neglect  to  do 
what  he  has  undertaken  to  do,  is  sufficient  to  prevent  his  obtaining 
the  remedy  of  specific  performance,  much  more  does  the  same  result 
follow  from  his  affirmative  acts  which  are  in  direct  violation  of  the 
contract  These  acts  may  furnish  a  ground  for  rescinding  the  con- 
tract, or,  in  other  words,  for  his  forfeiting  all  rights  under  it;  or  they 
may  constitute  a  personal  objection  to  the  plaintiff,  and  to  his  obtain- 

(1)  Whittemore  uWhittemoi-e,  L.  R.  8  Eq  (503.  per  Maun.s,  V.  C.  Tlie  .h'terid- 
ant  cited,  ia  support  of  hi.s  contention  concerning-  the  stipulation,  Portmun  v. 
Mill,  2  Russ.  570  ;  Dinimock?).  Hallett,  L.  R.  2  Ch.  21  ;  Cording-ley  v.  Chee.sebrough, 
3  Gifl".  49(5 ;  31  L.  J.  Ch.  (517.  See,  also,  as  to  a  partial  failure  of  the  suViJect-niat- 
ter  thi-oug-h  mistake  or  otherwise,  Jeft'rys  v.  Fairs,  L.  R.  4  Ch.  D.  448  ;  Denny  v. 
Hancock.  L.  R.  (5  Ch.  1. 

(2)  Winch  V.  Winchester,  1  V.  &  B.  375  ;  King-  v.  Wilson,  6  Beav.  124  ;  where  a 
tenant  in  possession  houg"ht  the  lot  which  was  described  as  46  feet  in  depth,  Viut 
was  foTind  to  Vie  only  33  feet  dee-p,  and  he  was  held  entitled  to  an  aliatenicnt. 

(3)  Pi-ice  V.  North,  2  Y.  &  C.  Ex.  620. 

(4)  Upperton  v.  Nickolson,  L.  R.  6  Ch.  436.  According  to  the  English  chancery 
practice  in  vendoi-'s  suits,  the  ordinary  decree  for  the  }>laintifT  directs  a  jierfiu-ni- 
ance  by  the  defendant  in  case  a  good  title  is  shown  ;  and  the  decree  is  then  fol- 
lowed by  an  inquiry  before  a  master  in  respect  to  the  state  of  the  vendor's  title. 

441 


I'ERFOKMA.WE   BY  FLAIN'IIFK  429 

ing  any  benefit  from  the  agreement  -which  he  has  thus  violated.  In 
the  former  of  these  cases,  it  would  be  useless  and  absurd  to  grant  a 
specific  performance  to  the  i)laintiff,  when  he  would  at  once  forfeit 
and  lose  all  that  he  obtained.  The  second  case  is  controlled  by  the 
general  doctrine  already  discussed,  that  the  plaintiff  must  perform  all 
the  terms  on  his  part,  and  that  the  party  coming  into  a  court  of  equity 
for  its  relief  must  himself  do  equity.(l) 

Sec.  355  The  doctrine  is  well  illustrated  by  cases  upon  agreements 
for  leases.  Whenever  the  intended  lessee,  under  such  agreement, 
does  or  has  done  acts,  or  made  omissions  in  reference  to  the  land  which 
would  work  a  forfeiture  of  the  lease  if  it  had  been  executed,  namely, 
if  he  does,  or  omits  acts  whicn  would  amount  to  a  breach  of  a  con- 
dition to  be  inserted  in  the  instrument,  and  for  which  breach  the 
lessor  would  have  a  right  of  re-entry,  or  if  he  commits  waste,  or  uses 
the  land,  when  it  is  agricultural,  in  an  unhusband-like  manner,  he 
cannot  enforce  a  specific  performance  of  the  agreement  against  the 
lessor.(2)  It  should  be  carefully  remembered,  however,  in  applying 
this  doctrine,  that  the  rules  concerning  waste  and  the  use  of  agricul- 
tural land  in  an  unhusband-like  manner,  are  not  so  strict  in  this  coini- 
try  as  in  England,  and  are  much  more  governed  by  circumstances, 
and  the  customary  modes  of  using  land  in  the  neighborhood.  It  has 
been  held,  also,  that  the  breach  by  the  intended  lessee  of  a  covenant 
to  repair  will  prevent  him  from  obtaining  the  remedy. (3)  Even 
though  the  lease,  when  executed,  would  contain  no  conditions;  or,  in 
other  words,  the  covenants  were  not  to  be  accompanied  by  a  clause  of 
re-entry,  so  that  their  breach  would  not  work  an  absolute  forfeiture, 
still  the  acts  of  the  intended  lessee,  which,  if  the  instrument  had 
been  executed,  would  have  amounted  to  a  breach  of  the  covenants, 
may  be  a  sufiicient  ground  for  defeating  his  claim  to  a  specific  perform- 
ance, because,  although  there  might  be  no  forfeiture,  he  would  have 
violated  the  principle  that  a  person  seeking  the  aid  of  equity  must 
himself  do  equity — must  act  in  accordance  with  equity. (4) 

(1)  KnatchbuU  v.  Gruebei',  _3  Meriv.  142,  and  Boavdman  v.  Mostyn,  6  Ves.  472, 
per  Lord  Eldon  ;  Lewis  v.  Bond,  18  Beav.  87,  per  Sir  J.  Romilly,  M.  R.;  Gregory 
V.  Wilson,  9  Hare,  687,  per  Turner,  V.  C;  Walker  v.  Jeffreys,  1  Hare,  341. 

(2)  Hill  V.  Barclay,  18  Ves.  63,  per  Lord  Eldox  ;  Lewis  v  Bond,  18  Beav.  85  j 
Gregory  v.  Wilson,  9  Hare,  683.     [But  see  Sanders  v  Bryer,  152  Mass.  141 .] 

(3)  Nunn  v.  Truscott,  3  DeG.  &  Sm.  304  ;  Job  v.  Banister,  39  Eng.  Law  &  Eq. 
599. 

(4)  Duke  of  Somerset  \\  Gourlay,  1  V.  &  B.  73,  per  Lord  Eldon.  In  Thomp- 
son V.  Guyon,  5  Sim.  65,  a  lease  had  been  given  with  a  clause  for  re-entry  upon 
a  breach  of  any  covenants  by  the  lessee,  and  also  a  covenant  to  grant  a  further 

442 


i 


430  SPECIFIC  PERFORMANCK   OF  CONTRACTS. 

Sec.  356.  Where,  in  a  suit  by  an  intended  lessee  to  compe.  an  execu- 
tion of  the  lease,  the  lessor  sets  up  in  defense  acts  ol'llir  iihiiutitV  wliich 
would  amount  to  a  breach  of  some  condition  to  be  contained  in  the 
instrument,  and  would  work  a  forfeiture,  and  would,  therefore,  accord- 
ing to  the  rule  stated  above,  prevent  a  si)ecific  performance,  it  is  left 
fairly  doubtful  from  the  evidence  of  both  parties  whether  tjie  plaintitt' 
has  been  guilty  of  such  acts  or  omissions^  the  recent  P^nglish  cases 
have  established  the  rule  that  the  court  will  decree  an  execution  of 
the  lease,  but  will  direct  it  to  be  ante-dated  the  rime  of  tli(>  alleged 
breaches,  and  will  compel  the  plaintiff  to  admit,  in  any  action  at  law 
brought  against  him  on  the  lease  for  such  breaches,  that  th(!  instrument 
was  executed  at  the  date  which  it  bears.  In  this  manner  tlieiiuestioii 
of  forfeiture  is  left,  where  it  more  properly  belongs, to  a  court  of  law  (1) 

8ec.  337-  In  other  contracts  than  agreements  for  leases,  If  the 
plaintiff,  pending  the  agreement  or  during  the  negotiations  arising 
out  of  it,  does  acts  of  wrong  or  violence  or  injustice  toward  the 
defendant,  or  is  guilty  of  inequitable  and  harsh  conduct,  violating  the 
entire  spirit  and  intent,  even  if  not  the  letter  of  the  contract,  he  will 
thereby  preclude  himself  from  obtaining  the  aid  of  a  court  of  equity 
in  a  subsequent  specific  enforcement  against  an  unwilling  defendant, 
who  sets  up  the  wrong  as  a  defense. (2). 

term  at  the  end  of  the  original  term,  if  it  should  not  have  been  sooner  ended  by 
the  lessee's  acts  or  defaults.  The  lessee  paid  all  the  rent  and  remained  in  pos- 
session till  the  expiration  of  the  term,  and  then  claimed  the  renewal.  He  had, 
however,  committed  vai-ious  breaches  of  his  covenants  during-  the  term  of  which 
the  lessor  had  no  knowledge  until  after  the  lease  had  expired.  The  lesst^e,  suing' 
for  a  specific  performance  of  the  lessor's  covenant  toi-enew,  the  lessor  set  up  these 
breaches  as  a  defense,  and  the  coin-t  held  that  the  lessees  could  not  enforce  a 
specific  performance,  because  the  lessor  could  have  re-entered  and  ended  the 
lease  during  the  term  if  he  had  known  of  the  breach,  and  he  ought  not  to  be  put 
in  a  worse  position  after  the  end  of  the  term,  than  he  would  have  been  if  he  ha«l 
known  of  the  breaches  during  its  continuance.  See,  also,  Gorton  v.  Smart,  1  S. 
&  S.  6j,  in  which  it  wius  intimated  that  a  nuisance  committed  by  the  intended 
lessee  upon  other  land  of  the  lessor,  might  prevent  his  enforcing  an  execution  of 
the  contract  to  give  a  h^ase.  [SpcHuiic  performance  of  an  agreemejit  to  renew  a 
lease  in  which  it  was  stipulated  that  the  premises  should  be  occupied  as  a  resi- 
dence and  used  "  strictly  asa  private  dwelling,  and  not  for  any  public  or  objection- 
able purpose,''  was  refused  where  the  assignee  of  the  lease  allowed  them  to  be 
used  as  a  boarding-house,  although  the  lessor  had  consented  to  their  use  for  sleep- 
ing rooms  in  connection  with  a  girls*  school.     Gannett  v.  Albree,  103  Mass  372  ] 

(1)  Pain  V.  Coombs,  1  DeG.  &  J.  34 ;  Lillie  v.  Legh,  3  DeG.  &  J.  204 ;  Rankin 
V.  Lay,  2  DeG.  F.  &  J.  65.  72  ;  Noonan  v.  Oi-ton.  21  Wis.  28:3. 

(2)  For  a  very  illustrative  case,  see  Marl)le  Co.  ii.  Ripley,  10  Wall.  3.")9  (lor  facts 
and  opinion,  see  ante,  §  35,  note)  ;  Kuatchbull  v.  GruelxM',  1  Mad.  153  ;  3  Meriv. 
124.  An  estate  was  sold  ui>on  condition,  amongst  others,  that  posses.sion  should 
be  given  immediately,  and  this  was  done.  Disputes  afterwanls  arose  between 
the  parties  about  the  title,  and  the  vendors  therefore  tendered  the  vendee  his 
deposits,  demanded  back  the  possession,  drove  his  stock  off  from  the  land,  and 
notified  the  tenants  not  to  pay  tlieir  rent  to  him  ;  and  this  conduct  was  held  so 

443 


PERFORMA  XCE  B  Y  PL  A INTIFF.  431 

Sec.  358  There  are,  however,  limitations  upon  or  exceptions  to 
the  doctrine,  as  follows:  The  plaintiffs  acts  in  violation  of  the  con- 
tr?.rt  vri!l  not  absolutely  defeat  his  equitable  I'eniedy  of  specific 
performance,  when  they  are  not  willful  or  intentional  ;(1)  nor  when  they 
consist  in  breaches  of  covenant  so  slight  and  unimportant  that  equity 
v^•ould  relieve  the  party  from  the  legal  forfeiture  caused  by  them  ;(2) 
ii;)r  when,  though  inteiitionah  these  wrongful  acts  are  of  very  little 
consequence,  and  the  defendant  has  a  full  and  sutlicient  remedy  for 
them,  while  the  plaintiff  would  be  without  any  adequate  remedy  on 
the  contract,  unless  a  specific  performance  is  granted  to  him.  But  in 
this  last  case  the  court  will  show  its  sense  of  the  plaintiff's  conduct  by 
imposing,  perhaps,  some  terms  or  conditions,  such  as  withholding  his 
costs,  or  even  charging  him  with  the  costs. (8) 

Sec.  3D9.  The  fact  that  the  defendant — the  lessor  or  vendor — 
has  "waived  all  claim  or  right  of  remedy  at  laio  for  the  plaintiff's 
wrongful  acts,  does  not  debar  him  fro:  i  setting  the  same  up  in  equity 
as  a  defense  to  plaintiff's  suit  for  specific  performance,  because  even 
though  the  acts  do  not  create  a  forfeiture,  they  may  furnish -a  sufiicient 
personal  objection  to  the  plaintiff.(4)  If,  however,  the  plaintiff  scon- 
duct  is  not  relied  on  as  raising  such  an  objection,  but  as  constituting 
a  breach  of  promise,  and  as  thereby  working  a  forfeiture  of  his  right 
and  interest,  it  must  be  proved  very  clearly  that  his*  wrongful  acts 
have  produced  a  forfeiture.  By  denying  a  specific  performance,  the 
court  of  equity  cuts  off  all  power  of  trying  the  question  of  forfeiture 
at  law,  and  this  it  will  not  do  unless  the  proof  is  such  as  establishes 

inconsistent  with  the  contract  that  the  vendors  were  not  able  to  enforce  perform- 
ance. The  following  are  further  illustrations  of  wrongful  acts  by  the  plaintiff, 
different  from  or  in  addition  to  the  inere  default  of  non-performance,  which  have 
pi-evented  a  decree  in  his  favor :  Using-  undue  influence,  Brady's  Appeal,  66  Pa. 
3t.  277;  Chambers  ■»  Livermore,  15  Mich.  381;  Piersol  •«.  Neill,  63  Pa.  St.  420; 
the  vendor  of  an  undivided  share  so  acting-  towards  his  co-tenant  as  to  prevent 
the  vendee  from  obtaining  peaceable  possession,  Dech's  Appeal,  57  Pac.  St.  407  ; 
i-epudiating  the  contract,  Eastman  v.  Plumer,  45  N.  H.  4G4  ;  refusing  to  pay  what 
he  was  iu  good  faith  bound  to  pay,  McClellan  v.  Darrah,  50  111.  249 ;  wrongful 
refutdng,  or  neglecting  to  perform  stipulations  on  his  part,  Howe  v.  Conley,  16 
Gray,  552 ;  Thorp  v.  Pettit,  1  C.  E.  Green,  488  ;  Board  of  Supervisors  v.  Henne- 
berry,  41  111.  179  ;  Cox  v.  Boyd,  38  Ala.  42  ;  [Goldihait  v.  Lynch  (Utah),  S3  Pac. 
Rap.  699  (June  22,  1893),  plaintiff  has  previously  refused  to  accept  the  deed 
when  tendei-i'd,  or  to  pay  the  purchase-money  ;  Maxtield  v.  Terry,  4  Del.  Ch  618, 
(contract  abandoned  by  the  plaintiff).  See,  also.  Slater  v.  Howie,  30  Pac.  Rep. 
(Kan.)  413,  July  8,  1892,  (plaintiff's  tender  coupled  with  demand  for  a  deed 
expressing  a  consideration  in  excess  of  that  bargained  for);  Davis  ■«.  Terry  (N. 
C),  18  S.  E  947,  Feb.  20,  1894  (plaintiff's  bringing  an  action  to  reform  the  con- 
tract does  not  amount  to  a  repudiation).] 

(1)  Walker -y.  Jeffreys,  1  Hare,  341,  where  the  violation  was  caused  by  inevitable 
accident. 

(2)  Walker  v.  Jeffreys.  1  Hare,  341 ;  Pain  -?'.  Coombs,  3  Sm.  &  Gif.  449  ;  Gregory 
V.  Wilson.  9  Hare.  6S.-!. 

(  !)  Holmes  v  Eastern  Counties  Ry.  Co.,  3  Jui-.  (N.  S.)  737.  per  Page  Wood,  V.  C 
(1)  B;)ardinan  v.  Mo-styn,  6  Ves.  407. 
444 


482  SPECIFIC  PERFORMAIvCE   OF  CONTRACTS. 

the  fact  beyond  a  question. (1)     Where  the  evidence  leaves  the  ques- 
tion  in   any  doubt,   the   cour'.,   as  we  have   ah-eady  seen,  grants  a 
specific  peiforniauce,  but  leaves  a  way  open  for  the  defendant  to  try 
the  issue  by  a  legal  action. (2) 
Tender,  -when  necessai-y. 

(Sec.  oGO.  lu  councctiou  with  the  general  doctrine  that  the  party 
seeking  a  specific  enforceriient  must  perform,  or  be  ready  and  willing 
to  perform  on  his  part,  an  entirely  distinct  question  remains  to  be  con- 
sidered. Must  the  party  asking  a  specific  enforcement  aver  and  prove 
an  actual  tender  or  of!'er  of  performance  prior  to  the  commencement 
of  the  suit,  as  a  prerequisite  to  his  obtaining  the  relief;  or  is  it 
sufficient  for  him  to  show  simply  that  he  has  been,  or  is  ready  and 
willing  to  perform,  and  that  he  makes  an  offer  in  his  pleading  to 
perform  all  the  acts  demanded  from  him  by  the  contract  ?  It  is  an 
established  rule  of  the  law,  that  when  one  party  sues,  in  a  legal 
action,  upon  a  contract  in  which  the  covenants  or  stipulations  are 
mutual  and  dependent,  he  must  allege  and  prove  an  actual  tender 
or  offer  of  .performance  by  himself.  Such  actual  tender  or  offer  is  a 
condition  precedent  to  his  maintaining  an  action  at  law  for  the  breach 
of  such  a  contract. (3)  In  some  of  the  states  this  legal  rule  seems  to  be 
applied  in  all  its  strictness  to  suits  for  the  specific  enforcement  of  con- 
tracts; in  other  states  the  more  liberal  rule  of  equity  has  been  adopted. 

Sec.  301,  Two  general  doctrines,  however,  may  be  considered  as 
established  with  reference  to  the  equitable  action.  An  actual  tender 
by  the  plaintiff  before  suit  brought  is  unnecessary,  when,  from  the 
acts  of  the  defendant  or  from  the  situation  of  the  property,  it  would 
be  wholly  nugatory — ^a  mere  useless  form.  If,  therefore,  before  or  at 
the  time  of  completion,  the  defendant  has  openly  and  avowedly 
refused  to  perform  his  part,  or  declared  his  intention  not  to  perform  at 
all  events,  1  hen  the  plaintiff  need  not  make  a  tender  or  deuiand  of 
performance  before  bringing  his  suit ;  it  is  enough  that  he  is  ready 

(1)  Grog-ory -!).  Wilson,  9  Ilare,  COl,  por  Turxer,  V.  C;  Munilyv.  JollifTo,  .^  My. 
&  Cr.  107,  177,  reversing'  9  Sim.  41J.  [Further  exjunplea  of  waiver  by  defeinl- 
ant.  Breach  of  condition  ayainst  assi<;niment  by  vendee  wai\'ed  by  vendoi''s- 
acceptance  of  payments  fi-om  tlie  assi<^nee  after  being  informed  of  the  assign- 
ment;  Camp  D  "Wig-g-ins  (Iowa),  84  N.  W.  4C1  (Oct.  15,  '87).  See,  also,  Degluw'a 
Ex'r  V   Meyer  (Ky  ),  ]  5  S.  W.  87."3.] 

(2)  See  cases  ante,  §  8.")0. 

(:})  Johnsim-a  Wyg-ant,  11  Wend.  48;  Lester -y.  Jewett,  11  N.  Y.  443;  and  the 
vendee  must  demand  a  deed  from  the  vendor.  Fuller  v.  Hubbard,  G  Cow.  i;}; 
Fuller  V.  William-^,  7  Cow.  .')?;  Haekett  v.  lluson,  3  Wend.  2,")0  ;  Carpenter  v. 
Brown,  G  Barb.  147  ;^II  il  v.  IIol)ait,  IG  Me.  1G4  ;  Fairbanks  v.  Dow,  G  N.  H.  2GG  ; 
Tmney  v.  Ashh-y,  jj  Pick.  iAW  ;  Smith  x\  Robinson,  11  Ala.  840;  Kinkcad  v. 
Shreve,  17  Cal.  275  ;  Gi-ay  v.  Douufhei-ty,  2.")  Cal.  2GG.  278,  279;  Be(;c.her  v.  Con- 
radt,  13  N.  Y.  108.  [Whoi-e  an  accounting-  by  defendant  is  nec-essary  to  determine 
whether  any  T)alance  of  the  jiui-chase  ])ric(»  i-onains  nni)aid,  a  formal  tcndei*  by 
the  plaintiff  of  the  price  is  excused  :  Cool !ia ugh -y.  Roemer,  32  Miuu.  44.'J ;  Rust 
V.  Strickland  (Colo.  ^.\^\^.),  28  Puc.  Rep.  HI.]' 

445 


PERFORMANCE  BT  PLAINTIFF.  433 

all  events,  then  the  plaintiff  need  not  make  a  tender  or  demand  of 
performance  before  bringing  his  suit ;  it  is  enough  that  he  is  ready 
and  willing,  and  offers  to  i)erforiu  in  his  pleading. (?)  Al.so,  if  at  the 
time  fixed  in  the  contract  for  completion  the  vendor  is  unable  to  fulfill 
and  to  convey  as  he  had  stipulated,  by  reason  of  some  defect  in  his  title, 
or  of  some  incumbrance  on  the  land,  the  vendee  is  in  like  manner 
excused  from  making  an  actual  tender  of  the  price,  or  of  the  securities 
which  he  was  to  give  prior  to  the  commencement  of  his  suit,  unless, 
according  to  the  doctrine  of  some  cases,  time  was  of  the  essence  of  the 
contract.  (2)  The  second  proposition  is,  that  where  the  stipulations 
are  mutual  and  dependent — that  is,  where  the  deed  is  to  be 
delivered  upon  the  payment  of  the  price,  either  on  a  day  named  or 
without  any  day  being  specified,  an  actual  tender  and  demand  by 
one  party  is  absolutely  necessary  to  put  the  other  in  default  and 
t®  cut  off  his  right  to  treat  the  agreement  as  still  subsisting.  80  long 
as  neither  party  makes  such  tender — of  the  deed  by  the  vendor  and 
of  the  price  or  securities  by  the  vendee — neither  party  is  in  default ; 
the  contract  remains  in  force,  and  either  party  may  make  a  proper 
tender  or  offer  and  sue,  until  barred  by  the  statute  of  limitations. (3) 
This  rule,  however,  does  not  apply  to  those  contracts  in  n";  hich  the  time 
of  performance  has  been  made  essential,  and  the  agreement  itself  is 
to  be  regarded  as  void  or  rescinded  if  the  vendee  fails  to  make  his 
payments  on  the  stipulated  days.  I  now  proceed  to  inquire  directly 
when  a  tender  by  the  plaintiff,  before  suit  brought,  is  necessary. 
Where  time  is  essential. 

Sec.  362.  In  all  those  contracts  where  the  time  of  payment 
by  the  vendee  is  essential  and  not  simply  material,  and  a  fortiori 
in  those  where,  if  the  vendee's  payments  are  not  made  upon  the 
exact  day  named,   the  vendor  may  treat  the  agreemenfc  as  at  an 

(1)  Kerr  V.  PurdY.  HO  Barlj  24  ;  Crary  v.  Smith,  2  N.  Y.  60,  65  ;  White  v.  Dob- 
son,  17  Gratt.  262  ;  Brown  v.  Eaton,  21  Minn.  400,  411  ;  Gill  v.  Newell,  13  Minn. 
462,  472  ;  Duchman  v.  Duchman,  49  Mo.  107  ;  Brock  v.  Ilidy,  13  Ohio  St.  307,  310  ; 
Hunter  v.  Daniel,  4  Hare,  420,  4:13  ;  Gray  v.  Dougherty,  25  Cal.  266,  280,  281  ; 
Maxwell  v.  Pettinger,  2  Green's  Ch.  156  ;  Mallocks  v.  Young,  66  Me.  459,  467  ; 
[Baumann  v.  Pickney,  118  N.  Y.  604;  Sheplar  v.  Green,  96  Cal.  218  (vendor 
brings  an  action  to  quiet  title  against  vendee);  Pollock  v.  Bi-ainerd,  26  Fed.  Rep. 
732  ;  Oakey  v.  Cook,  41  N  J.  Eq  350  ;  Mastin  v.  Grimes.  83  Mo.  478 ;  JNIansfield 
r.  Hodgdon,  147  Mass.  304;  Shattuck  v.  Cunningham  (Pa.),  31  Atl.  Rep.  136 
(Feb.  18,  1895);  Bucklen  v.  Hasterlick,  (111.)  40  N.  E.  Rep.  561  (Ajn-il  1,  1895, 
tender  of  deed  by  vendor  excused,  when  the  vendee  makes  objections  to  the 
title);  Watson  v.  White,  (HI.)  38  N.  E.  Rep.  902  (Oct.  29,  1894;  tender  by  vendee 
excused,  when  vendor  has  sold  the  property  to  another)-] 

(2)  Karker  v.  Haverly,  50  Barb.  79  ;  Delavan  v.  Duncan,  49  N.  Y.  485,  487 ; 
Yotmg  V.  Daniel,  2  Iowa,  126 ;  Gray  v.  Dougherty,  25  Cal.  266,  280 ;  and  see  for 
facts  excusing  a  tender  by  the  vendee.  Hall  v.  Whittier,  10  R.  I.  5.0.  In  Kimball 
V.  Tooke,  70  111.  553,  It  was  held  that  where  time  is  of  the  essence  of  Hie  contract, 
the  vendee  must  tender  the  price  on  the  day  named,  even  though  an  incumbrance 
on  the  land  would  prevent  the  vendor  from  completing  on  that  day. 

(3)  Leaird  v.  Smith,  44  N  Y.  618  ;  Van  CampeniJ.  Knight,  63  Barb.  205  ;  Crab- 
tree  V.  Levings,  53  111.  526  ;  Irvin  v.  Blackley,  67  Pa.  St.  24,  28 ;  Hubbell  v.  Van 
Schoening,  49  N.  Y.  321,  331,  "th':  party  seeking  to  put  the  other  in  default  must 
not  only  be  ready  and  willing  to  i)erform,  but  he  must  tender  performance  .-'.t  the 
time,  and  demand  performance  from  the  other." 

446 


434  SPECIFIC  PER  FORMA. \CE  OF  CONTRACTS. 

end,  the  vendee  must  make  an  actual  tender  of  the  price  and  a 
demand  of  the  deed  at  the  specilied  time,  a.s  a  condition  precedent 
to  his  maintaining  a  .suit.  The  same  is  true  of  the  vendor  when  the 
time  of  his  conveyance  is  made,  essential.  This  rule  is  involved  in 
the  very  notion  of  time  being  of  the  essence  of  the  contract.(l)  The 
necessity  of  a  tender  on  the  exact  day  may,  however,  be  waived 
by  the  conduct  of  the  other  party  even  in  this  class  of  coutracts.(2) 

Where  time  is  not  essential. 

8ec.  863.  With  respect  to  the  necessity  of  an  actual  tender  by  the 
plaintiff,  before  suit  brought  for  a  specific  performance  of  contracts  in 
which  time  is  not  essential,  tliere  is  a  direct  conflict  among  the  American 
decisions,  and  in  the  rules  prevailing  in  different  states.  According  to 
a  large  number  of  decisions,  and  as  the  rule  seems  to  be  settled  in 
several  of  the  states,  where  the  stipulations  of  the  contract  are  mutually 
dependent,  the  plaintiff  must  make  an  actual  tender,  and  must  demand 
a  performance  by  defendant  before  bringing  liis  suit  for  a  specific 
enforcement ;  unless  the  defendant's  conduct  has  amounted  to  a  waiver, 
so  as  to  let  in  the  rule  stated  in  section  361.  Under  the  operation  of  this 
doctrine,  a  tender  and  demand  are,  in  general,  as  much  a  necessary  pre- 
requisite to  the  equitable  suit  for  a  specific  performance  as  to  the  legal 
action  brought  for  a  breach  of  the  contract.  A  modification,  however, 
is  made  by  some  of  the  cases  belonging  to  this  class,  which  dispense 
with  the  demand  of  performance  in  the  equity  suit,  and  only  require 
the  tender.(3)    A  very  different  rule  has  been  established  for  the  equi- 

(1)  Kimball  v.  Tookc,  70  111.  553  ;  Phelps  v.  111.  Cent.  R.  R.,  G3  111.  468  ;  Gale 
V.  Archer,  42  Barb.  320  ;  Wells  v.  Smith,  2  Edw.  Ch.  78 ;  Dutty  v.  O'Donovan,  46 
N,  Y.  223,  in  which  a  short  delay  of  the  vendee  was  excused  by  acts  of  the 
vendor.     Heuer  u  Rutkowsky,  18  Mo.  216  ;  and  see  cases  cited  under  §§  383-394. 

(2)  Duffy  V.  O'Donovan,  46  N.  Y.  223 ;  Kimball  v.  Tooke,  70  111.  553 ;  for  recent 
cases  involving-  the  g-eneral  question  of  a  waiver  of  timely  performance,  see 
De  Wolf  ^.  Pratt,  42  III.  198  ;  Hoyt  v.  Tuxbury,  70  111.  331  ;  Walker  v.  Doug-lass, 
70  111.  445  ;  Iglehart  v.  Vail,  73  111.  63  ;  Ditto  v.  Harding,  73  111.  117  ;  Hedenberg- 
V.  Jones,  73  111.  149  ;  Tobcy  t\  Foreman,  79  III.  489  ;  [Cheney  v.  Libby,  134  U.  S.  68.] 

(3)  Suits  by  the  vendee.  This  rule  is  well  settled  in  Mississippi.  Klyce  v. 
Brayles,  37  Miss.  524,  and  cases  cited  ;  Mhoon  v.  Wilkerson,  47  Miss.  633.  The 
following  cases  either  expi-essly  hold  or  impliedly  assume  the  necessity  of  a  tender 
and  demand,  or  of  a  tender  alone,  as  stated  in  the  text.  Hoen  v.  Simmons,  1  Cal. 
119,  121 ;  Goodale  v.  West,  5  Cal.  339,  341  ;  Green  v.  Covilland,  10  Cal.  317,  323  ; 
Gaven  v.  Hagen,  15  Cal.  208,  212;  Duff  v.  Fisher,  15  Cal.  375,  381  ;  Morgan  v. 
Stearns,  40  Cal.  434.  438  (action  at  law);  Eiiglander  v.  Rogei-s,  41  Cal.  420 
(action  at  law)  ;  Marshall  v.  Caldwell,  41  Cal.  611,  615  ;  Jones  v.  City  of  Petaluma, 
36  Cal.  230,  232  ;  Gray  v.  Dougherty,  25  Cal.  266,  278,  282  (in  the  two  latter  c;ises 
a  demand  of  the  deed  by  the  vendee  was  held  unnecessary  in  the  equitable  suit, 
but  recjuisite  in  a  legal  action)  ;  [Stratton  v.  Cal.  Land,  etc.,  Co.,  86  Cal.  353,  362  ; 
Dorris  v.  Sullivan,  90  Cal.  279  ;]  Mather  v.  Scoles,  35  Ind.  1 ;  Fall  ■?>.   Hazelri"-g 

447 


PERFORMANCE  BY  PLAINTIFF.  435 

table  suit  by  another  class  of  decisions.  It  is  as  follows  :  In  a  suit  for 
a  specific  performance,  where  the  stipulations  of  the  agreement  are 
mutual  and  dependent,  an  actual  tender  or  demand  by  the  plaintiff 
prior  to  the  suit  is  not  essential  to  his  obtaining  the  relief.  It  is 
enough  that  he  was  ready  and  willing,  and  offered  at  the  time  speci- 
fied, or  even  that  he  is  ready  and  willing  at  the  time  of  bringing  the 
suit,  unless  his  rights  have  been  lost  by  laches,  and  that  he  offers  in 
his  pleading  to  perform  all  the  stipulated  acts  on  his  part.  The 
plaintiff's  performance  will  be  provided  for  in  the  decree  as  a  condi- 
tion to  his  relief,  and  his  neglect  to  make  a  prior  tender  or  specific 
offer  to  i)ay  the  price  to  deliver  the  securities,  or  to  execute  a  deed, 
as  the  ease  may  be,  will  only  affect  his  right  to  costs  in  the  suit.(l) 

45  Ind.  576  ;  Hunter  v.  Bales,  24  Ind.  299,  308 ;  Lynch  v.  Jennings,  43  Ind,  276, 
286  (in  the  three  latter  cases  the  vendee  had  actually  tendered  before  suit,  and  an 
oflFer  to  pay  made  in  his  complaint  was  held  sufficient,  without  bringing  the  money 
into  court)  ;  Hart  v.  McClellan,  41  Ala.  2r)l ;  Carter  u. Thompson,  41  Ala.  375  ;  Bell  v. 
Thompson,  34  Ala.  633 ;  Hall  v.  Whittier,  10  R.  I.  530  (a  tender  was  held  excused 
by  defendant's  conduct,  but  this  case  plainly  shows  that  otherwise  it  would  have 
been  necessary)  ;  Duchman  v.  Duchman,  49  Mo.  107  ("ordinai-ily  such  tender  or 
offer  to  pay  is  essential  ");  Brock  v.  Hidy,  13  Ohio  St.  30G,  310  ("it  is  a  familiar 
genei-al  rule  of  equity,  that  a  vendee  seeking  a  specific  performance  of  a  contract 
for  a  conveyance  of  real  estate  by  a  vendor  must  tender  or  bring  into  court  the 
purchase-money  ");  Young  v.  Daniels,  2  Iowa,  176  ;  Huffn.  Jennings,  1  Morris  (la.) 
434 ;  Collins  v.  Vanderveer,  1  Iowa,  573,  578 ;  Rogers  v.  Taylor,  40  Iowa,  193  ; 
Greenup  v.  Strong,  1  Bibb,  590  ;  Beardon  v.  "Wood,  1  A.  K.  Marsh,  450.  [See, 
also,  Westcott  v.  Mulvane,  58  Fed.  Rep.  305 ;  7  C.  C.  A.  242  ;  Short  v.  Kieffer, 
(111.)  31  N.  E.  Rep.  427 ;  Dwyer  v.  Wright  (Pa.),  29  Atl.  Rep.  754  (July  1,  1894) ; 
Bowen  v.  McCarthy  (Mich  ),  48  N.  W.  Rep.  155.]  Siuts  hij  the  vendor— KlycQ  v. 
Brayles,  37  Miss.  524,  and  cases  cited  ;  Mhoon  v.  "VVilkerson,  47  Miss.  633 ;  Ex 
'parte  Hodges,  24  Ark.  197  ;  Hill  v.  Grigsby,  35  Cal.  656  (action  at  law) ;  Cor  bus 
V.  Teed,  69  111.  205  (where  the  vendee  has  assigned  the  contract,  a  tender  by  the 
vendor  should  be  made  to  the  original  vendee).  In  Thompson  v.  Smith,  63  N. 
Y.  301,  where  the  vendor  had  died,  and  his  executor  sued,  since  they  did  not  hold 
the  title  and  could  not  give  a  deed,  and  since  a  decree  ordering  them  to  convey 
would  not  bind  the  vendor's  heirs  or  devisees,  it  was  held  that  the  complaint 
must  show  that  they  had  procured  a  deed  from  the  heirs  or  devisees  and  tendered 
it,  or  that  they  were  ready,  willing,  and  able  to  iirocure  and  deliver  such  deed. 
[See,  also,  Miller  v.  Cameron,  45  N.  J.  Eq.  95  (in  a  unilateral  contract  for  the 
sale  of  lands,  the  vendoi',  plaintiff,  not  being  originally  bound,  must  show  that  he 
has  tendered  himself  ready  to  perform  all  the  stipulations  on  his  part  before 
filing  his  bill)  ;  Slater  v.  Howie  (Kans.),  30  Pac.  Rep  413.] 

(1)  Suits  by  the  vendee.  Smoot  v.  Rea,  19  Md.  398,  410  ;  Maughlin  v.  Perry,  35 
Md.  352  ;  Morris  v.  Hoyt,  11  Mich.  9,  18  (in  this  case  the  contract  could  be  avoided 
by  the  vendor  on  any  failure  of  the  vendee  to  pay  at  the  day  named,  and  yet  the 
equitable  rule  dispensing  with  tender  was  applied)  ;  Seeley  v.  Howard,  13  Wise, 
336 ;  St.  Paul's  Division  v.  Brown,  9  Minn.  157 ;  Chess's  Appeal,  4  Pa.  St.  52  ; 
Irvin -D.  Gregory,  13  Gray,  215,  218  (Shaw,  C.  J.,  said:  "In  such  cases  [of  de- 
pendent stipukxtions]  it  is  not  necessary  on  the  part  of  the  vendee  to  make  a  strict 
tender,  and  actually  to  deliver  over  the  money  unconditionally  without  his  deed  ; 
it  is  sufficient  that  upon  reasonable  notice  to  the  owner  he  is  ready  and  willing  to 
jierform,  and  when  the  performance  is  the  payment  of  money,  that  he  has  the 
money  and  is  able  and  prepared  to  pay,  and  demands  the  deed,  and  the  other 
refuses  to  receive  the  money  and  execute  the  deed.     That  is  a  sufficient  tender 

448 


430  si'Kcii ic  ri:in-()RMAych:  <>r  coyrjcAcrs. 

It  is  plain  that  tli(^  distinction  between  the  doctrine  of  eijuity  and  of 
the  hiw  with  respect  to  tender,  luis  been  overlooked  or  intentionally 
disregarded  by  the  conrts  in  several  of  the  states. 

Form  of  the  deed. 

Hec.  ;>tj4.  What  kind  and  form  of  deed  the  vendor  must  execute 
and  deliver — whetlier  quit-claim,  g^rant  with  or  without  covenants, 
warranty,  etc. — will  in  numerous  instances  be  determined  l>y  the 
special  language  of  the  contract  itself.  But  certain  rules  have  been 
settled  with  reference  to  some  general  clauses  of  agreements  in  fre- 
quent use,  which  1  si. all  state  very  briefly.  It  should  be  observed, 
however,  that  the  great  majority  of  the  decisions  from  which  these 
rules  are  gathered  were  rendered  in  legal  actions,  where  the  tpiestion 
to  be  determined  was,  whether  the  vendor's  covenant  to  convey  liad 
been  broken  at  law  or  not.  It  is  settled  by  a  strong  prepondercMice  of 
authority  that  a  general  covenant  or  contract  "  to  convey,"  or  tO' 
"sell  and  convey"  certain  land,  or  to  "convey"  certain  land  "by  a 
good  and  sufficient  deed,"  or  in  any  other  analogous  terms,  binds  the 
vendor  to  convey  a  perfect,  indefeasible  title  irrespective  of  the  form 
of  the  deed,  and  is  not  satisfied  by  giving  a  deed  merely  sufficient  in 
form  to  convey  what  partial  interest  the  vendor  may  have,  even 
though  it  contain  all  covenants  of  title.     In  other  words,  the  vendor 

of  jierformance  to  -warraut  the  jiarty  so  offering'  to  maintain  his  action.  *  *  * 
In  a  suit  for  a  specific  ii(;rfoi-niance,  it  is  sufficient  for  the  phiintilf  to  oudi;  by  his 
bill,  to  bring  in  his  money  when  the  sum  is  liquidated,  and  he  has  a  decree  for  a 
specific  performance)."  Park  v.  Johnson,  4  Allen,  259  ;  Stevenson  v.  Maxwell,  2 
N.  Y.  493,  515  (  per  Gardiner,  J.  :  "  When  the  deed  is  to  be  given  and  the  pur- 
chase-money is  to  be  paid  on  a  particular  day,  neither  could  sue  at  law  without  a 
tender  of  the  deed  by  the  one  party,  or  of  the  purchase-money  or  security  by 
the  other.  Either  party  might,  however,  go  into  equity  for  a  specific  iiei-form- 
ance,  and  make  the  offer  incumbent  upon  him  in  the  bill,  and  the  failure  to  make 
a  tender  before  the  commencement  of  the  suit,  would  affect  the  question  of 
costs)."  Bellinger  v.  Kitts,  6  Barb,  273,  281 ;  Bruce  v.  Tilson,  25  N.  Y.  194,  197, 
203  (see  comments  of  Allen,  J.,  upon  "Well.=;  v.  Smith,  2E(Kv.  Ch.  78  ;  7  Paige,  22, 
confining  it  to  contracts  in  which  time  is  essential) ;  Treeson  v.  Bissell,  (33  N.  Y. 
168,  170  ;  Thompson  v.  Smith,  03  N.  Y.  301,  304.  [See,  also,  Whealland  v.  Silsbeo, 
159  Mass.  177  ;  Ash urst  •?).  Peck  (Ala.),  16  So.  Rep.  541;  Minneapolis,  etc.,  Ry, 
Co.  V.  Chisholm,  (Minn.)  57  N.  W.  Rep.  63.  Plaintiff's  request  to  defendant  to 
make  a  deed  to  a  third  jierson,  coupled  with  an  agreement  to  make  a  mortgage 
back,  not  a  sufficient  offer  of  performance.  Thaxter  v.  Spragne,  159  Mass.  397. 
Where  a  tender  has  actually  been  made  by  the  vendee,  an  offer  to  pay  contained 
in  his  complaint  is  sufficient,  he  need  [not]  bring  the  money  into  court.  So  held 
in  Fall  v.  Ilazelrigg,  45  Ind.  576  ;  Hunter  v.  Bale.s,  24  Ind.  299,  303  ;  Lynch  v. 
Jennings,  43  Ind.  276,  286;  and  see  Mix  v.  Booth,  46  III.  311.  if'^aits  by  thn 
vendor — Tender  of  a  deed  not  necessary.  Stevenson  v.  Maxwell,  2  N.  Y.  498, 
515;  Bruce  ■?).  Tilson,  55  N.  Y.  194,  197,  203;  Treeson  v.  Bi.ssell,  63  N.  Y.  168, 
170  ;  Thompson  t).  Smith,  301,  304  (but  where  the  vendor  has  died,  an-l  hi  ^  execu- 
tors or  administrators  sue,  they  must  procure  and  tender  a  deed  fioni  the  ven- 
dor's heirs  or  devisees);  [coiitra,  Faulkner's  Adm'r  v  Williams  (Ky.).  16  S.  W. 
Rep.  352 ;]  Halok  v.  Greensweig-,  2  Pa,  St.  295  ;  Winton  v.  Sherman,  20  Iowa, 
295  ;  Rutherford  v.  Haven,  11  Iowa,  507;  Woodson  v.  Scott,  1  Dana,  470  ;  Seeley 
V.  Howard,  13  Wise.  336  ;  and  see  McKleroy  v.  Tulane,  34  Ala.  78  ;  [Shelby  v. 
Mikkelson  (N.  D.),  63  N.  W.  Rep.  210  (April  11,  1895).J 

449 


FEfiFORMAACE  By  PLAINTIFF,  437 

must  give  a  perfect  title  at  all  events,  and  must  execute  a  deed  suffi- 
cient to  transfer  and  secure  such  title. (1)  The  contrary  coastructiou 
tit  law  is  })ut  upon  such  covenants  by  some  of  the  cases  which  hold 
that  they  are  satislied  by  the  delivery  of  a  deed  sufficient  in  form  to 
convey  whatever  tille  the  vendor  has  without  covenants  of  warranty. ("2) 
It  is  further  held  in  some  of  the  decisions  that  a  contract  in  general 
terms  to  convey  specilied  land,  but  silent  as  to  the  kind  of  deed, 
obliges  the  vendor  to  give  a  deed  with  covenant  of  warranty,  either 
general  or  special,  and  conveying  an  estate  fee  in  fee-simple;  but  the 
requirement  of  a  warranty  in  the  completion  of  such  agreements  is  by 
no  means  universal. (3)  The  construction  which  has  been  put  upon  a 
few  other  special  contracts  is  stated  in  the  foot-note.(4) 

Some  rules  for  interpreting  usual  provisions  in  contracts. 

►Sec.  o6o.  Second.  In  England  certain  methods  of  conducting  a  sale, 
and  certain  features  of  the  contract  have  become  quite  generally  estab- 
lished by  common  usage.    The  property  which  is  put  up  for  sale,  either 

(1)  Bui'well  V.  Jackson,  9  N.  Y.  5C5,  and  cases  cited,  expressly  overruling" 
Gazley.v.  Pi-ice.  16  Johns.  267,  and  Packer  v.  Parmelee,  20  Jolms.  130;  Delavan 
1).  Duncan,  49  N.  Y.  485  ;  Story  v.  Conger,  36  N.  Y.  673 ;  Clute  v.  Robinson,  2 
Johns.  305 ;  Matter  of  Hunter,  1  Edw.  Ch.  1 ;  Porter  v.  Noyes,  2  Greenl.  22'; 
Brown  v.  Gammen,  14  Me.  276 ;  Stow  v.  Stevens,  7  Vt.  27  ;  Abendroth  v.  Green- 
wich, 29  Conn.  356  ;  Owing-s  V.  Baldwin,  8  Gill,  337  ;  Clark  v.  Redman,  1  Blackf. 
380  ;  Panker  v.  McAllister,  14  Ind.  12 ;  Shreck  v.  Piera,  8  Iowa,  350  ;  Taft  v. 
Kessel,  16  "Wise.  273 ;  Greenwood  v.  Ligon,  10  Sm.  &  Mar.  615.  This  ruling  is 
identical  with  the  equity  doctrine  that  the  vendor  must  give  a  good  title  unless  the 
contract  otherwise  provides. 

(2)  Gazley  v.  Price,  16  Johns,  267  ;  Parker 'U.  Parmelee,  20  Johns.  130  (these  cases 
ai"e  overruled  by  Burwell  v.  Jackson,  9  N.  Y.  535)  ;  Tiimey  v.  Ashley,  15  Pick. 
546  ;  Joslyn  v.  Taylor,  33  Vt.  470 ;  Brown  v.  Covilland,  6  Cal.  566,  573 ;  Green  v. 
Covilland,  10  Cal.  317,  322  ;  and  see  Clark  v.  Lyons,  25  111.  105. 

(3)  Goddin  v.  Vaughn,  14  Gratt.  102  ;  Vardemant).  Lawson,  17  Tex.  10  ;  Holman 
v.  Creswell,  15  Tex.  394 ;  Witter  v.  Biscoe,  13  Ark.  422  ;  Tremain  v.  Lining, 
Wright  (Ohio),  644 ;  Lloyd  v  Farrell,  48  Pa.  St.  73;  [McDonald  v  Minnick,  147 
111.  (i51  ;  Day  v.  Burnham  (Ky.),  11  S.  W  Rep  807  ;]  ixr  contra,  see  Ketchum  v. 
Evertson,  ]  3  Johns.  359. 

(4)  A  covenant  to  "sell  and  convey  "  land  does  not  bind  the  vendor  to  give  a 
deed  with  covenants  of  warranty,  or  other  personal  covenants.  Van  Ejjps  V. 
Schenectady,  12  Johns.  436.  A  covenant  to  "  convey  in  fee  simple  "  is  satisfied 
by  a  deed  without  covenant  of  warranty,  if  the  vendor  has  such  an  estate. 
Fuller  V.  Hubbard,  6  Cow.  1.  A  covenant  to  convey,  by  a  "  good  and  sufficient 
deed  of  general  warranty,"  does  not  require  that  the  land  should  be  free  from 
incumbrances  or  wife's  dower.  Bostwick  v.  Williams,  36  111.  65  ;  per  cantra,  it 
requires  a  deed  with  release  of  dower.  Davar  v.  Cardwell,  27  Ind.  478.  [If  it 
clearly  appears  from  the  contract  itself  or  from  the  circumstances  surrounding  it, 
that  the  jiarties  had  in  view  merely  such  conveyance  as  will  pass  the  title  which 
the  vendor  had,  whether  defective  or  not,  that  is  all  the  vendee  can  claim  or  insist 
on.  Thompson  v.  Hawley,  14  Or.  199,  207  See,  also,  Newark  Savings  Inst.  v. 
Jones,  37  N.  J.  Eq.  449,  Where  the  contract  calb  fcr  an  abstract  showing  good 
title,  the  title  must  appear  to  be  good  on  the  face  of  the  abstract.  Smith  v.  Tay- 
lor, 82  Cal.  533.  Where  the  vendor  is  a  trustee  or  a  court  commissioner,  it  is 
held  that  a  deed  with  special  warranties  only  is  all  that  can  be  required.  Taven- 
ner  v.  Barrett,  21  W.  Va.  656,  and  cases  cited.  Whei-e  the  contract  provides  for 
a  deed  "clear  of  all  encumbrances,"  a  covenant  against  incumbrances  is  neces- 
sary.    Bryant  v.  Wilson,  71  Md.  440,] 

450 


438  SP  KOI  Fir    PKRFORMAXCE    OF   COXTKACTS. 

at  private  negotiation  or  at  piiMic  auction,  is  frequently  if  not  com- 
TOonly  described,  with  its  amount,  situaiion,  estate,  title,  incumln-ances, 
and  the  like  items,  which  go  to  make  up  a  description,  in  a  i)reliminary 
written  or  printed  document  called  the  "  Particulars  of  Sale."  The 
terms  upon  which  the  sale  is  made,  and  the  restrictions  and  limita- 
tions upon  the  buyer,  are  stated  in  another  preliminary  document 
known  as  "  The  Conditions  of  Sale."  This  contains,  among  other 
things,  the  price,  the  mode  and  time  of  payment,  the  mode  and  time 
of  delivering  possession  and  completing  the  transaction,  all  the 
special  restrictions  imposed  by  the  vendor  with  reference  to  the  title 
which  the  purchaser  must  be  contented  with,  and  the  vendor  is  able 
or  willing  to  make  out,  and  whatever  other  limitations  and  rules  of 
proceeding  the  owner  sees  fit  to  prescribe  for  the  government  of  the 
parties  in  the  process  of  arranging  and  performing  the  contract. 
Several  of  these  stipulations,  which  are  usually  found  in  such  docu- 
ments, have  already  been  discussed,  and  their  effect  ascertained ;  and 
others  will  be  examined  in  the  following  sections  upon  "Time"  and 
*' Compensation."  The  general  rules  for  the  construction  and  inter- 
pretation of  these  parts  of  the  contract,  have  been  well  settled  by  the 
English  courts  ;  and  although  no  such  practice  has  been  universally 
established  in  this  country — chiefly  because  our  titles  and  the  law 
governing  them  are  so  much  more  simple,  certain,  easy  and  natural — 
and  although  there  is  with  us  a  great  diversity  in  the  forms  and  con- 
tents of  contracts  for  the  sale  of  land,  yet  the  doctrines  and  principles 
of  construction  which  have  been  settled  in  England,  must,  of  neces- 
sity, be  applicable  to  all  similar  or  analogous  contracts,  stipulations 
and  clauses  which  may  be  used  in  the  United  States.  Our  agreements 
may  be  more  simple,  less  formal  and  elaborate,  and  yet  the  same 
questions  in  kind  must  arise  in  their  interpretation  which  arise  from 
the  more  complicated  forms  which  prevail  in  Great  Britain.  Although 
the  English  decisions  may  refer  to  technical  names  little  used  and 
hardly  known  in  the  real  estate  transactions  of  this  country,  such  as 
"  Particulars,"  "  Conditions,"  and  the  like,  yet  the  principles  of  these 
decisions  are  as  true  with  us  as  with  them,  and  can  be  readily  applied 
to  the  cases  arising  in  our  own  courts  upon  the  contracts  with  wliich 
we  are  familiar.  I  shall  give,  therefore,  a  brief  abstract  of  the 
general  rules  of  construction  as  settled  by  the  English  authorities, 
but  the  interpretation  of  special  provisions  will  be  found  under  the 
appropriate  heads  to  which  they  belong. 

Sec.  366.  In  construing  particular  contracts,  and  in  deducing  gen- 
eral rules  of  interpretation,  the  courts  have  constantly  recognizinl  two 
facts,  or  elementary  truths,  as  the  very  foundations  of  their  judicial 
processes — facts  which  are  as  true  in  the  United  States  as  in  England. 
They  are  :  1.  The  vendor  has,  or  must  be  assumed  to  have,  a  knowl- 

451 


PERFORMANCE  BY  PLAINTIFF.  439 

edge  of  all  the  facts  and  circumstances  concerning  the  property  to  be 
sold,  and  his  title  therein,  rather  than  the  purchaser;  and  2.  The 
vendee,  in  the  absence  of  all  express  stipulations  to  the  contrary, 
possesses  a  legal  right  to  have  the  very  property  contracted  for,  with 
a  good  title  and  without  incumbrance,  so  that  all  contrary  stipulations 
and  conditions — that  is,  which  would  confine  him  to  the  acceptance 
of  an  imperfect  title,  or  incumbered  or  diminished  property,  are  in 
restraint  of  his  common-law  right.  These  two  foundation  principles 
are  inherent  in  the  relations  of  the  parties  and  the  nature  of  the  sub- 
ject-matter. 

Sec.  367.  The  first  and  most  important  rule,  derived  from  these 
premises,  is  that  the  particulars  and  conditions — or  in  other  words, 
all  parts  of  the  contract  wherein  the  vendor  describes  the  property, 
his  estate  and  title,  or  imposes  restrictions  upon  the  vendee's  common- 
law  right,  are  construed  strictly  as  against  the  vendor,  and  liberally 
in  favor  of  the  purchaser.  In  other  words,  the  vendor  must,  in  all 
these  portions  of  the  contract,  use  language  the  meaning  of  which  is 
reasonably  clear  and  certain ;  and  a  fortiori  must  do  so  when  the 
property  is  sold  at  auction,  where  the  bidders  do  not  generally  have 
time  or  opportunity  for  a  careful  examination  of  the  terms. (1)  When- 
ever, therefore,  the  language  on  the  vendor's  part  is  ambiguous,  fairly 
susceptible  of  different  meanings,  the  duty  and  risk  do  not  fall  upon 
the  purchaser  of  ascertaining  and  fixing  upon  the  correct  meaning  as 
intended  ;(2)  he  may  adopt  the  meaning  most  favorable  to  himself. (3) 

(1)  Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.  542,  55S,  559  ;  Dykes  v.  Blake,  4  Bing.  N. 
C.  463,  47G. 

(2)  Martin  v.  Cotter,  3  Jon.  &  Lat.  496  ;  Greaves  v.  Wilson,  4  Jur.  (N.  S.)  271. 

(3)  Seaton  v.  Mapp,  2  Coll.  C.  C.  556.  The  court  will  hesitate  to  compel  a  pur- 
chaser, under  such  cases,  to  complete  the  performance,  if  the  languag-e  is  ambig- 
uous, and  he  is  unwilling  to  accept  the  vendor's  construction.  Taylor  v.  Martin- 
dale,  1  Y.  &  C.  C.  C.  658.  This  rule  of  construction  favorable  to  the  vendee, 
where  the  vendor's  language  is  fairly  ambiguous,  is  illustrated  by  the  following 
cases  among  many  :  Seaton  v.  Mapji,  2  Coll.  C.  C.  556,  it  being  doubtful  to  which, 
of  two  leases  reference  was  made  by  the  vendoi''s  language,  the  vendee's  construc- 
tion was  adopted,  and  the  vendor's  suit  was  dismissed.  In  Rhodes  v.  Ibbetson, 
4  DeG.  M.  &  G.  787,  a  condition  that  no  title  should  be  required  prior  to  a  certain 
lease,  was  held  not  to  be  so  clear  and  express  as  to  prevent  an  investigation  into 
the  proceedings  with  respect  to  the  contract  for  the  lease  which  had  taken  place 
before  the  lease  itself  was  executed ;  in  Drysdale  v.  Mace,  2  Sm.  &  Gif.  225  ;  5 
DeG.  M.  &  G.  103,  the  vendor  of  a  reversionary  estate  stipulated  as  a  condition 
of  the  sale,  that  a  statemeiat  in  a  deed  of  1836,  that  a  "life  "  annuity  had  not  been 
paid  for  eight  years,  and  a  declaration  by  the  vendor  that  no  claim  had  been 
made  iipon  him  in  respect  to  such  annuity  since  1841,  and  that  he  believed  no 
such  claim  had  been  made  for  the  past  twenty  years,  should  be  conclusive  evi- 

452 


J 


440  SPECII'IC  PERFORMAXCE   OF  CONTRACTS. 

Sec.  868.  It  follows,  as  a  necessary  corollary  from  tliis  lule  of  strict 
construction  ag-ainst  the  vendor,  that  the  laiig'tiajL^fc  of  oiu^  condition 
or  restrictive  clause  inserted  by  the  vendor,  will  not  bo  extended  by 
implication  so  as  to  embrace  another  condition  or  restrictive  clause, 
and  thus  make  it  more  restrictive  or  enlarge  its  scope  and  applica- 
tion beyond  the  natural  import  of  its  own  t<erms.(l)  It  is  also  a  rule, 
founded  upon  the  plainest  justice,  and  applied  to  every  form  and  kind 
of  stipulation,  that  a  condition  or  restrictive  stipulation  inserted  by  . 
the  vendor  or  otherwise  made  a  part  of  the  contract,  however  strong' 
and  positive  may  be  its  language,  shall  never  be  used  by  him  as  a 
means  or  instrument  of  sustaining  and  rendering  successful  any 
fraudulent  conduct  or  practices  on  his  part,  and  this  doctrine  has 
frequently  been  applied  to  cases  of  mere  mistake  where  there  was  no 

dence  that  the  annuity  had  endeil  (of  course,  by  the  death  of  the  aiuiuitant).  It 
appeared  that  this  annuity  had  V)een  g-ranted  by  a  person  entitleil  only  in  i-ever- 
sion  to  the  property  (so  that  it  woukl  not  be  payable  until  the  prior  estate  had 
ended,  and  tlie  reversion  had  become  changed  into  possession),  and  that  it  was 
granted  for  the  life  of  the  survivor  of  four  persons  named.  It  was  held  that  the 
description  of  it  as  a  "life  "  annuity  would  naturally  induce  the  vendee  to  believe 
it  to  be  for  one  life  only,  and  the  omission  to  state  the  facts  as  they  were  was  gi-ound 
for  defeating  the  vendor's  suit  for  a  specific  performance.  In  Martin  v.  Cotter,  3 
Jon.  &  Lat.  496,  the  property  was  described  as  being  subject  to  an  agreement 
dated  1804,  for  a  lease  for  four  (4)  lives  and  one  year  ;  but  it  appearing  that,  by 
the  provisions  of  this  agreement,  the  four  lives  were  not  to  be  named  initil  1845, 
this  uncertainty  (or  rather  misleading-  description)  was  held  to  be  a  fatal  objection 
to  the  vendor's  relief.  In  Howell  v.  Kightley,  21  Beav.  331,  certain  lease-hold 
estates  (terms  of  years  under  leases — the  lessee's  interests)  were  sold  under  a 
condition  that  the  possession  of  the  lessee,  or  those  representing-  him,  should  be 
taken  as  conclusive  evidence  of  a  due  performance  of  all  covenants  in  the  lease  on 
his  part,  or  of  a  sufficient  waiver  by  the  lessor  of  any  breach  by  the  lessee  of 
such  covenants  "up  to  the  completion  of  the  sale."  Held,  that  this  condition 
covered  all  breaches  by  the  lessee  up  to  the  date  of  the  contract  in  suit,  but  did 
not  include  a  bi-each  by  the  lessee  for  which  the  lessor  became  entitled  tore-enter 
and  forfeit  the  lease,  committed  after  the  date  of  the  conti-act,  and  befoi-e  the 
matter  was  finally  comjjleted  by  carrying  the  contract  into  execution.  The  woi'ds, 
*' up  to  the  completion  of  the  sale,"  were  held  not  sufficiently  certain  to  require 
the  court  and  the  vendee  to  adopt  a  construction  which  should  cover  the  latter 
named  breach.  See,  also,  Southby  v.  Hutt,  2  My.  &  Cr.  207;  Symons  v.  James, 
1  Y.  &  Q  C.  C.  487;  Adams  v.  Lambert,  2  Jur.  1078;  Cruse  v.  ivowell,  25  L.  J. 
Ch.  709  ;  Brumfit  v.  Morton,  3  Jur.  (N.  S.)  1198. 

(1)  Southby  V.  Hutt,  2  My.  &  Cr.  207 ;  Osborne  v.  Harvey,  7  Jur.  229  ;  and  in 
Dick  V.  Donald,  1  Bli.  (N.  S.)  G55,  it  was  held  that  a  comlition  by  the  vendor  that 
certain  named  title  deeds  only  were  to  be  given  up  and  turned  over  to  the  vendee, 
would  not  1)6  extended  so  as  to  permit  the  vendor  to  limit  the  title  to  be  i)ro(luced 
by  him  to  that  shown  by  those  deeds  alone,  but  he  must  make  out  a  g-ood  title- 
in  other  words,  this  stipulation  did  not  affect  the  ordinary  duty  as  to  making  out 
title. 

453 


TIME  AS  AFFECTING    THE   RIGHT.  441 

suggestion  of  knowledge  or  wrongful  intent. (1)  As  examples  of  this 
rule,  a  condition  providing  that  the  vendee  shall  not  avoid  the  con- 
tract on  account  of  any  error,  deficiency,  and  the  like,  but  shall  be 
compelled  to  accept  with  compensation,  is  rendered  entirely  nugatory 
if  there  has  been  any  intentional  misrepresentation  by  the  ven- 
dor; (2)  and  the  same  is  true  of  a  condition  that  objections  to  the  title 
must  be  made  within  a  specified  time. (8)  A  condition  by  which  the 
vendor  reserves  the  power  of  rescinding  the  contract  upon  the  pur- 
chasei-'s  objecting  to  the  title  as  shown  by  the  abstract,  will  not 
enable  the  vendor,  intentionally,  to  deliver  a  defective  abstract  which 
must  necessarily  be  objected  to,  with  the  design  of  having  an  oppor- 
tunity to  rescind. (4) 

&EC.  369.  If  the  conditions  state  facts  upon  which  they  are  based, 
such  facts  must  be  proved. (5) 


SECTION   III. 


Time  as  affecting  the  right  to  a  performance  ; ,  when  and  when  not  of  the 

essence  of  the  contract. 

Time  as  vievred  in  law  and  in  equity. 

Sec.  370.  In  the  first  section  of  this  chapter  the  equitable  doctrine 
is  stated,  that  an  executory  contract  of  sale  is  regarded  in  many 
respects  as  if  executed ;  that  the  equitable  estate  in  the  subject-matter 
vests  in  the  purchaser,  and  the  vendor  holds  the  legal  estate  as  his 
trustee,  while  the  equitable  property  in  the  price  passes  to  the  vendor. 
From  this  broad  principle  are  deduced  many  of  the  equitable  doctrines 
and  rules  which  govern  the  rights  and  duties  of  the  parties  in  carry- 
ing out  the  agreement,  so  far  as  such  doctrines  and  rules  differ  from 
those  which  prevail  at  law.  One  of  the  most  important  of  the  doctrines 
derived  from  this  principle  is  that  which  permits  an  enforcement  of  the 
contract,  although  the  plaintiff  has  not  exactly  complied  with  all  of  its 
terms,  and  especially  with  those  which  prescribe  the  time  for  the 
performance  of  various  acts.  As  has  already  been  stated,  equity  draws 
a  broad  distinction    between  those  terms  of  a  contract  which  are 

(1)  See  sections  on  Misrepresentation  and  Mistake. 

(2)  Stewai-t  v.  Alliston,  1  Mer.  26  ;  and  this  bag  been  so  held  where  the  error 
was  a  mistake  merely,  when  large.  See  ante. 

(3)  Price  v.  Macauley,  2  DeCi.  M.  &  G.  339,  347. 

(4)  Morley  v.  Cook,  2  Hare,  111. 

(5)  Symona  v.  James,  1  Y.  &  C.  C.  C.  487  ;  and  see  Johnson  v.  Smiley,  17  Bear. 
233, 

454 


4iJ  SI'KC/FIC   riiUFOliMASCE    OF   C(J.\  TJi'A(  /S. 

material,  and  those  which  are  formal,  and  requires  a  compliance  with 
the  former  only  by  the  party  seeking  its  relief,  dispensing  entirely 
with  the  others,  and  permitting  a  compensation  in  the  place  of  their 
actual  jjerforniance.  Even  among  the  material  terms,  equity  seems  to 
distinguish  between  those  which  are  of  the  essence  of  the  contract — 
which  must  be  strictly  and  exactly  complied  with — and  othei-s  in 
respect  of  which  a  substantial  compliance  is  sufficient. 

Sec.  371.  The  ground  of  the  rules  concerning  time  and  the  effect  of 
delay  is  often  said  to  be  the  principle  that  time  in  equity  is  not  gen- 
erally material.  At  law  it  is  otherwise ;  for  the  plaintiff,  suing  irpon 
a  contract,  nuist  show  that  he  has  done  all  the  acts  on  his  part  within 
the  prescribed  time  where  such  period  is  iixed  by  stipulation,  and  within 
a  reasonable  time,  where  there  is  no  stipulation  upon  the  subject.  To 
w^hatever  source  it  be  referred,  whether  to  the  principle  that  an  equi- 
table estate  in  the  subject-matter  is  transferred  to  the  purchaser,  or  to 
the  general  notion  that  time  is  immaterial,  the  doctrine  is  lirnily  estab- 
lished, that  in  all  ordinary  cases  of  contract  equity  does  not  regard 
time  as  of  the  essence  of  the  agreement ;  or,  to  state  the  doctrine  in  a 
more  particular  form :  In  all  ordinary  cases  of  contract  for  the  sale 
of  land,  if  there  is  nothing  special  in  its  objects  or  in  its  subject- 
matter,  although  a  certain  period  of  time  or  particular  day  is  stipulated 
for  the  completion  of  the  agreement,  or  the  execution  of  any  of  its 
terms,  equity  treats  this  provision  as  formal  rather  than  essential,  and 
permits  a  party,  who  has  suffered  the  period  to  elapse  within  which 
he  should  have  done  the  acts  on  his  part  according  to  the  literal  terms 
of  his  agreement,  to  perform  such  requisite  acts  after  the  prescribed 
date,  and  to  compel  a  performance  by  the  other  party  notwithstanding 
his  own  delay.  This  general  doctrine  is  established  by  an  unbroken 
series  of  decisions,  but  it  is  subject  to  various  exceptions,  limitations, 
and  modifications  which  will  be  examined  and  discussed  in  the 
present  section, (1) 

(1)  One  of  the  leading-  cases  is  Seton  v.  Slade,  7  Ves.  205,  in  which  the  dnoti-ine 
is  thus  stated  by  Lord  Eldon  :  "To  say  time  is  regarded  in  this  court  as  at  law 
is  quite  impossible.  The  case  mentioned,  of  a  mortgage,  is  very  strong.  At  law 
the  mortgagee  is  under  no  obligation  to  reconvey  at  that  particular  day — i.  c,  at 
and  after  the  jiay-day  when  the  mortgagor  has  failed  to  pay — jind  yet  this  court 
says,  that  though  the  money  is  not  paid  at  the  time  stipulated,  if  jiaid  wiih 
interest  at  the  time  a  reconveyance  is  d(!manded,  there  shall  be  a  reconveyance, 
upon  this  ground,  that  the  contract  is,  in  this  coui-t,  consiilered  a  m(M-e  loan  of 
mon('y,  secured  by  a  pledge  cf  the  estate.  But  that  is  a  doctrine  upon  wliifh  this 
court  acts  against  what  is  the  2w*"fta/«t'ie  import  of  the  terms  of  the  agreement 
itself,  which  does  not  import,  at  law,  that  once  a  mortgage  always  a  moi-tgage. 
But  equity  says  that.     *     *     *     I  only  say,  time  is  not  reganhid  here  as  at  law. 

455 


TIME  AS  AFFECTING    THE  RIGHT.  443 

Sec.  372.  In  this  discus.siou  I  shall  adopt  the  following-  order  and  sub- 
division of  topics  :  1.  The  general  doctrine  that  time  is  not  ordinarily 
essential,  with  its  applications  and  illustrations.  2.  Wliere  time  is 
essential,  including  the  three  cases  of  (a)  essential  from  the  nature  of 
the  subject-matter  or  object  of  the  contract,  (6)  essential  by  reason  of 
express  stipulation,  {c)  essential  by  reason  of  notice  fixing  a  period  for 
completion.  I  shall  then  consider  the  effect  of  delay  in  general,  viz. : 
3.  Where  the  delay  is  caused  by  the  act  or  omission  of  the  parties. 

So  in  the  instance  of  a  mortgage  with  interest  at  five  per  cent,  and  a  condition  to 
take  four  per  cent  if  regularly  iiaid  ;  or  at  four  per  cent,  with  a  condition  for  five 
per  cent  if  not  regularly  paid.  At  law  you  might,  in  that  case,  recover  the  five 
j)er  cent,  for  it  is  the  legal  interest.  But  this  court  regards  the  five  per  cent  as  a 
penalty  for  securing  the  four  ;  and  time  is  no  furtlier  the  essence  than  that,  if  it  is 
not  paid  at  the  time,  the  party  may  be  relieved  fi-om  paying  the  five  per  cent  by 
paying  the  four  per  cent,  and  jnitting  the  other  party  in  the  same  condition  as  if 
the  four  per  cent  had  been  paid  ;  that  is,  by  paying  him  interest  on  the  four  per 
cent  as  if  it  had  been  received  at  the  time.  So  in  this  court,  before  courts  of  law 
dealt  with  a  bond  under  a  penalty  as  they  do  now,  time  was  the  essence  there  ; 
but  this  court  relieved  against  the  penalty  long  before  a  court  of  law,  and  there 
ai-e  many  other  instances.  But  there  is  another  circumstance.  The  effect  of  a 
contract  for  purchase  is  very  different  at  law  and  in  equity.  At  law,  the  estate 
i-emains  the  estate  of  the  vendor,  and  the  money  that  of  the  vendee.  It  is  not  so 
here.  The  estate,  from  the  sealing  of  the  contract,  is  the  real  pi-opei'ty  of  the 
vendee.  It  descends  to  his  heirs  ;  it  is  divisible  by  his  will ;  and  the  question, 
whose  it  is,  is  not  to  be  discussed  merely  between  the  vendor  and  vendee,  but 
may  be  discussed  between  the  representatives  of  the  vendee.  Therefore,  I  do 
not  take  a  full  view  of  the  subject,  upon  the  question  of  time,  unless  that  is  taken 
into  consideration."  It  will  be  seen  that  Lord  Eldon  refers  the  doctrine  to  both 
of  the  principles,  viz.,  to  the  general  notion  that  time,  in  equity,  is  not  material, 
and  to  the  theory  that  a  contract  of  sale  is  executed  and  transfers  the  property  to 
the  vendee.  In  De  Canqi  v.  Feay,  5  S.  &  R.  323,  a  vendee  made  a  considerable 
default  in  payment  of  the  price  when  due,  and  uiion  tendering  it,  sevei-al  months 
afterwards,  the  vendor  refused  to  accept  it,  or  give  the  deed.  The  court  held, 
that  the  vendee  was  entitled  to  a  specific  performance,  and  the  doctrine  was  thus 
laid  down  by  Gibson,  J.  :  "Where  time  admits  of  compensation,  as  it  perhaps 
always  does  where  the  lapse  of  it  arises  fi-om  money  not  having  been  paid  at  a 
particular  day,  it  is  never  an  essential  part  of  the  agreement.  Neither  do  I  con- 
sider that  the  subsequent  agreement,  by  which  the  parties  stipulated  that  if  the 
whole  sum  should  not  be  paid  at  a  certain  day,  the  payment  then  made  should. 
be  forfeited,  and  the  oiiginal  bargain  be  at  an  end,  gave  the  defendant  (the 
vendor)  any  additional  right  to  rescind.  Vernon  v.  Stephens,  2  P.  Wms.  66,  comes 
fully  up  to  the  case  before  us  ;  and  there  the  subsequent  agreement  was  not  only 
l>ositive,  that  in  default  of  payment  by  a  particular  day  the  articles  should  be 
<lelivered  uji,  but  the  parties  solemnly  entered  into  an  order  of  the  court  to  enforce 
})erformance  of  it ;  yet  the  chancellor,  on  the  ground  that  the  agreement  and  order 
were  in  the  nature  of  a  penalty,  and  intended  only  as  a  security  for  the  payment 
of  the  money,  relieved  against  them  on  payment  of  the  principal,  interest  and 
costs,  saying,  that  where  the  defendant  has  received  that  he  has  no  right  to  com- 
plain of  having  suffered.  It  is  precisely  on  the  same  principle  that  in  other  cases 
456 


444  SPECIFIC  PERFORM  A. \Ch:    OF   COM  R  ACTS. 

4.  Where  caused  by  a  defect  in  the  title.  5.  The  rights  of  parties 
to  interest,  or  the  rents  and  profits,  as  compensation  in  case  of  a  dehiy 
which  does  not  absolutely  rescind  the  agreement.  In  this  discussion 
all  questions  concerning  performance  with  compensation  are  i)Ost- 
poned,  as  far  as  possible,  until  the  next  section. 

Time  not  ordinarily  essential. 

Sec.  ol'.l.  1.  The  general  doctrine  has  already  been  stated,  with 
many  authorities,  and  need  not  be  repeated.  It  is  important, 
however,  to  distinguish  at  the  outset  between  "  essential  "  and 
"material."  While  time  may  not  be  of  the  essence  of  a  contract, 
it  may  still  be  material  and  important,  as  will  b«  shown  in  sub- 
sequent subdivisions  of  this  section.  Where  the  older  cases  laid 
down  the  principle  that  time  is  not  ordinarily  material  \\\  equity  they 

chancery  relieves  ag'aiiist  the  exercise  of  ii  loyal  i-iyht  expressly  arising'  out  of  a 
contract,  as  in  the  case  of  a  mortgag-e  ;  or  a  i-ight  of  entry  for  a  forfeiture  incurred, 
by  the  non-performance  of  a  covenant  in  a  lease  to  pay  the  rent  at  a  particular 
day  ;  or  against  the  forfeiture  of  the  deposit  by  reason  of  the  non-payment  of 
the  iiurchase-money  ;  oi-  against  jiayment  of  a  higher  rate  of  interest,  if  the  prin- 
cii)al  be  not  paid  by  a  particular  day."  Vyse  v.  Foster,  L.  11.  7  II.  L.  318  ;  Shop- 
hivird  V.  Walker,  L.  R.  20  Eq.  e-oO  ;  Webb  v.  Hughes,  L.  R.  10  Eq.2Sl ;  McMui-ray 
V:  8picer,  L.  R.  5  l'>q.  527  ;  and  the  remarks  of  Lord  Cairns  and  Sir  John  Rolt,  iu 
Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  67,  69,  (Quoted  ante,  under  section  315 ;  and  of 
Alderson,  B.,  in  Ilipwell  v.  Knight,  1  You.  &  Coll.  415.  See,  also,  Pincke  v. 
Curteis,  4  Bro.  C.  C.  320  ;  Radcliffe  v.  Wan-ington,  12  Yes.  326  ;  Parkin  v.  Thorold, 
2  Sim.  (N.  S.)  1 ;  16  Beav.  59  ;  Hull  v.  SUu-divant,  46  Me.  34  ;  Jones  v.  Rcbbins, 
29  Me.  351  ;  Dressel  v.  Joi-dan,  104  Mass.  407  ;  Quinn  v.  Roath,  37  Conn.  16 ; 
Edgerton  v.  Peckham,  11  Paige,  352;  Pinckney -y.  Hagadorn,  1  Duer,  90;  Viele 
V.  Troy  &  Boston  R.  R.,  21  Barb.  381  ;  Ilubbell  v.  Von  Schoening,  49  N.  Y.  326 ; 
Van  Campen  v.  Knight,  63  Barb.  205  ;  Huffman  v.  Hummer,  2  C.  E.  Green,  263 ; 
Sharp  V.  Ti-iramer,  9  C.  E.  Green,  422  ;  Remington  v.  Irwin,  2  Harris,  143 ;  Smoot 
v.  Rea,  19  Md.  40G  ;  Brock  v.  Hidy,  13  Ohio  St.  305  ;  Ewing  v.  Crouse,  6  Ind. 
312  ;  Keller  v.  Fisher,  7  Ind.  718  ;  Linton  v.  Potts,  5  Blackf.  396  ;  Shafer-y.  Niver, 
9  Mich.  233  ;  Bomier  v.  Caldwell,  8  Mich.  403 ;  Snyder  -y.  Spaulding,  57  III.  486  ; 
Crittenden  v.  Drury,  4  Wise.  205  ;  Spalding  v.  Alexander,  6  Bush,  160  ;  Walton 
V.  Vv'^ilson,  30  Miss.  576 ;  Knott  v.  Stei)hens,  5  Oreg.  235  ;  Morgan  v.  Bergen,  3 
JN'eb.  209  ;  King  v.  Ruckman,  5  C.  E.  Green,  316  ;  Bullock  v.  Adams,  5  C.  E. 
Green,  367  ;  Pi-ince  v.  Griffin,  27  Iowa,  514  ;  Steele  v.  Branch,  40  Cal.  3.  [See, 
also.  Day?).  Hunt,  112  N  Y.  191;  Ewing  u  Gordon,  49  N.  H.  444;  Kellogg  r. 
Lavender,  9  Neb.  418  ;  Nicholson  v.  Smith,  22  Ch.  D.  640  ;  Dynan  r.  McCulloch, 
46  N.  J.  Eq.  14  ;  Tyler  v.  Ortz  (Ky.),  20  S.  W.  Rep.  256.]  In  Scarlett  V. 
Stein,  40  Md.  512,  it  was  held  that  parol  evidence  is  admissible  to  show  that 
time  is  not  essential.  Wh(n-e  tinu^  is  not  essential,  the  contract  subsists  so 
long  as  neither  party  takes  any  steps  to  assert  his  right  as  against  the  other,  and 
to  call  upon  that  other  for  a  completion  ;  so  long,  that  is,  as  the  vendor  does  not 
tender  a  deed,  or  the  vendee  does  not  tender  the  price,  or  the  security  stij)ulated 
to  be  given  for  the  price  ;  in  short,  there  is  no  default  which  raises  the  question 
<.)f  time  while  neither  party  has  made  a  demand  ui)on  the  other  and  temlered  or 
ofl'ered  pei-formance  by  himself.  In  such  a  condition  of  the  conti-act  either  ]>arty 
may  make  the  proper  tender  or  offer  of  performance,  on  his  own  part,  and  demand 
and  compel  pei"formance  by  the  other,  until  the  right  of  action  is  barred  by  the 
statute  of  limitations.  Leaird  v.  Smith.  44  N.  Y.  613 ;  Van  Campen  v.  Knight,  63 
Barb.  205  ;  Crabtree  v.  Levings,  53  111.  526. 

457 


TIME  AS  AFFECTING    THE   limilT.  445 

used  the  word  suh  viodo,  in  a  special  and  limited  sense — in  fact,  as 
substantially  synonymous  with  essential.  They  simply  intended  to 
show  that  while,  in  many  cases  at  law,  although  a  party's  rights  were 
gone  when  he  had  permitted  the  day  specified  in  the  contract  to  pass 
without  doing  the  act  required  by  its  terms  to  be  done  on  that  day, 
equity  might  interpose  and  suffer  him  to  do  the  act  afterwards  and 
regain  his  rights  thereby,  if  he  compensated  the  other  party  for  the 
delay — which  compensation  was  often  a  payment  of  interest.  It  was 
never  intended  that  equity  regarded  time  as  of  no  consequence  in  ful- 
filling an  agreement,  and  relieved  a  party  after  any  and  every  delay. 
If  time  is  essential,  then  the  act  to  be  done  must  be  done  on  or 
before  the  day  specified  for  its  performance,  or  all  rights  are  lost.  If 
it  is  not  essential,  equity  7nay  permit  the  act  to  be  done  after  the 
day;  may  permit,  not  must;  for  the  delay  or  failure  may  be  such,  or 
from  such  a  cause  that  equity  will  refuse  to  interpose. (1) 

Sec.  374.  Returning  to  the  doctrine  that  time  is  not  ordinarily  essen- 
tial in  equity.  This  doctrine  has  been  held  in  some  cases  to  embrace 
unilateral  engagements  as  well  as  those  which  consist  of  nmtual 
promises — for  example,  contracts  giving  the  party  the  option  of  pui- 
chasing,  although  he  does  not,  on  his  part,  promise  to  buy,  and  doe* 
not  become  bound  until  he  signifies  his  acceptance  of  the  offer.  It 
is  said  that,  in  these  and  similar  contracts,  the  exact  time  of  perform- 
ing or  paying  is  not  the  essential  point,  and  that  a  delay  will  not 
prevent  their  enforcement  unless  it  is  intentional,  or  so  injurious  to 
the  other  party  as  to  admit  of  no  adequate  compensation. (2)  It  will 
be  seen,  however,  in  the  sequel,  that,  according  to  other  decisions,  in 
this  kind  of  contracts  time  is  presumptively  essential. (3)  It  is 
beyond  all  doubt  that  the  doctrine  under  consideration  applies  with 
special  force,  and  will  always  be  applied — except  in  very  special 
cases  where  the  intention  that  it  should  be  essential  is  expressed  in  the 
clearest  manner  by  positive  stipulation— to  promises  to  pay  money. 
A  default  in  the  payment  at  the  day  appointed,  unless  the  delay  be 
from  such  a  cause,  or  be  continued  so  Miireasonably  long  as  to  be  a 
ground  for  rescission  —  will  always  be  relieved ;  in  other  words,  the 

(1)  See  remarks  of  Sir  Johx  Rolt,  in  Tilley  v.  Thomas,  L.  R.  3  Ch.  (51,  69, 
quoted  ante  under  §  315,  in  which  he  says  that  the  conti-ar.t  is  broke7i  in  equity  as 
well  as  at  law — only  equity  may  relieve  the  defaulting-  party  from  the  effect  of 
his  breach.     This  is  the  substance  of  the  doctrine  that  time  is  not  essential. 

(2)  Townley  v.  Bedwell,  14  Ves.  591  ;  Ely  v.  Beaumont,  5  S.  &.  R.  124 ;  Kerr  v. 
Day,  2  Harris,  112 ;  D' Arras  v.  Keyser,  2  Casey,  249  ;  see  Moss.  v.  Barton,  L.  R, 
1  Eq.  474. 

(3)  See  post,  §§  387,  388,  411. 

458 


44(3  ISVECIFIC   rEUFOiniASCK    OF  COXTHACrS. 

mere  suffering  the  pay-day  to  passi,  \vill  not  i)reclu(le  the  party  from 
enforcing  tlie  contract.  The  reason  is  tliat  by  a  payment  of  the  i)rin- 
cipal  and  the  interest  for  the  time  whicli  lias  elapsed,  equity  con- 
siders the  creditor  party  as  fully  compensated. (1) 

(1)  Pritchiud  /\  Todd,  3S  Conn.  413  ;  Sharp  v.  Ti'immcr,  9  (.'.  E.  Gre»Mi,  422  ; 
De  Camji  v.  Feay,  5  S.  &  R.  325,  327  ;  Converse  v.  lilinniich,  14  Mich.  109,  114  ; 
Shoi-tall  V.  Mitchell,  57  111,  IGI ;  Young  v.  Daniels,  2  Clarke  (Iowa),  12G ;  Long- 
worth  t).  Taylor,  1  McLean,  395  ,  14  Peters.  172;  [Dj-nan  v  McCulloch.  40  N.  .1.  E<i. 
11.]  The  doctrine  was  so  ably  discussed  in  the  last-named  cius(!  by  Judge  Story, 
that  I  shall  quote  from  it  at  some  length.  J>oiig\vorth  made  an  agreement  luider 
seal  for  the  purchase  of  some  land,  in  1814,  from  Taylor,  one-third  of  the  price  to 
be  paid  down,  one-third  in  six  months,  and  the  one-third  at  the  end  of  a 
year,  and  a  deed  of  conveyance  to  be  given  within  three  months  from  the 
date  of  the  contract.  The  first  one-third  was  paid,  and  L.  took  possession, 
but  no  deed  was  made,  and  the  second  installment  was  not  paid,  but  was 
postponed  by  agreement  that  L.  should  pay  interest  at  the  rate  of  nine  per 
cent.  L  paid  the  interest  until  the  end  of  1819,  and  erecte<l  buildings  which 
increased  the  value  of  the  land.  In  1819  or  1820  L.  was  notitied  that  one  C. 
was  about  to  .sue  in  equity  to  recover  the  land  Such  suit  was  brought  in 
1828,  and  ended  in  1830  by  a  decree  for  the  defendants  therein.  In  the  mean- 
time Taylor  recovered  possession  of  the  land  from  L.  by  ejectment ;  this  was  in 
1824.  In  1825  L.  brought  suit  against  T.  for  a  specific  performance,  but  it  was  not 
brought  on  to  a  hearing  until  about  1835  (the  other  equity  suit  probably  causing  this 
delay  in  part),  and  resulted  in  a  decree  by  the  circuit  court  in  favor  of  the  plain- 
tiff L.  T.  appealed  to  the  U.  S.  supreme  court,  and  their  opinion  was  given  by 
Story,  J.,  as  follows  :  "  The  substantial  question  in  the  cause  is,  whether,  under 
all  the  circumstances,  the  plaintiff  L.  is  entitled  to  a  sjiecitic  performance  of  the 
contract  for  the  purchase  ;  and,  upon  the  fullest  consideration,  we  are  of  opinion 
that  he  is,  and  that  the  decree  is  therefore  right.  We  shall  now  proceed  to  state 
the  grounds  upon  which  we  hold  this  opinion.  In  the  first  place,  there  is  no  doubt 
that  time  may  be  of  the  essence  of  a  conti-act  for  the  sale  of  property.  It  may  be 
made  so  by  the  express  stipulations  of  the  parties,  or  it  may  ai-ise  by  implication 
from  the  very  nature  of  the  property,  or  the  avowed  objects  of  the  seller  or  the 
purchaser.  And  even  where  time  is  not  thus  expressly  or  impliedly  of  the 
essence  of  the  contract,  if  the  jiai-ty  seeking  aspecific  performance  has  been  guilty 
of  gross  laches,  or  has  been  inexcusably  negligent  in  j)erforming  the  contract  on 
his  part ;  or  if  there  has,  in  the  intermediate  pei'iod,  been  a  material  change  of 
circumstances  affecting  the  rights,  interests,  or  obligations  of  the  parties  ;  in  all 
such  cases  courts  of  equity  will  refuse  to  decree  any  si)ecific  performance,  upon 
the  plain  gi'ound  that  it  would  be  inequitable  and  unjust.  But,  except  under  cir- 
cumstances of  this  sort  or  of  an  analogous  nature,  time  is  not  treated  by  coui-ts 
of  equity  as  of  the  essence  of  the  contract ;  and  relief  will  be  deci-eed  to  the  party 
who  seeks  it,  if  he  has  not  been  grossly  negligent,  and  comes  within  a  reasonable 
time,  although  he  has  not  complied  with  the  sti-ict  terms  of  the  conti'a<-t.  But  in 
all  such  cases  the  court  exjjects  the  i>arty  to  make  out  a  case  free  from  all  doubt, 
and  to  show  that  the  relief  which  he  asks  is,  undcM"  all  the  (circumstances,  etpiitable, 
and  to  account  in  a  rejisonable  manner  for  his  delay  and  ajiparent  omission  of 
duty.  It  does  not  seem  necessary  to  cite  particular  authorities  in  support  of  these 
doctrines,  although  they  are  very  nnmeroiis.  It  will  be  sufficient  to  refer  to  the 
cases  of  Pratt  xi.  Carroll.  8  Cranch,  471  ;  Pratt ij.  Law,  9  Cranch,  456,  493,  494  ;  and 
Brashier  v.  Gratz,  6  "Wheat.  528 ;  in  this  court,  and  to  Seton  v.  Slade,  7  Ves.  265  ; 

459 


TIME  AS  AFFECTING    THE   RIGHT.  447 

8ec.  375.  In  pursuance  of  this  doctrine  the  decisions  are  numerous, 
whereby  purchasers  who  did  not  pay  the  price,  and  vendors  who  did 
not  perfect  their  title  and  otier  to  convey,  at  the  time  prescribed,  and 
even  not  until  years  had   elapsed  from  that  date,  have  been  held 

Halsey  v.  Grant,  13  Ves.  73  ;  Alley  v.  Deschamps,  13  Ves.  225  ;  Hearne  v.  Tenant, 
13  Ves.  289  ;  and  Hepwell  V.  Knight,  1  Y.  &  C.  Ex.  C.  415  ;  in  England,  as  afford- 
ing illustrations  in  point.  In  applying  the  doctrine  above  stated  to  the  facts  and 
circnnistances  of  the  present  case,  the  first  remark  that  occurs  is  that  the  first 
default  was  on  the  part  of  Taylor.  By  his  contract  he  undertook  to  make  a  deed 
of  genei'al  wari'anty  of  the  premises  in  the  course  of  three  months  after  the  date 
of  the  contract,  the  second  installment  not  being  payable  until  a  long  time  after- 
wards. He  never  made  any  such  deed  nor  offered  to  make  it,  and  if  he  had  it  is 
obvious  that  instead  of  his  being  placed  in  the  situation  of  a  defendant  in  equity, 
as  he  now  is,  he  would  have  been  compelled  to  be  a  plaintiff,  either  to  enforce  a 
specific  performance  or  to  i-escind  the  contract.  The  excuse  for  the  omission  is, 
that  it  was  the  duty  of  the  other  side  to  prepare  and  tender  a  formal  deed  to  him 
for  execution."  (Saying  that  this  rule  is  established  in  England,  growing  out  of 
their  modes  of  conveyancing,  holds  that  there  is  no  such  rule  in  the  United  States.) 
*  *  *  "  But  waiving  this  consideration,  let  us  pi-oceedto  others  presented  by 
the  cases."  Mentioning  the  default  in  payment  in  1819,  and  the  ejectment 
brought  in  1822,  he  proceeds  :  "In  the  meantime  L.  had  been  left  in  the  possession 
of  the  premises  under  the  contract,  had  made  improvements  upon  them,  and  had 
received  the  rents  and  profits  with  the  acquiesence  of  Taylor.  Under  such  cir- 
cumstances, where  there  had  been  a  part  pei-formunce,  and  lai'ge  expenditures 
on  one  side,  under  the  contract,  and  acquiesence  on  the  other  side,  it  would  be 
incompatible  with  established  doctrine  to  hold  that  one  party  could,  at  his  own 
election  by  a  suit  at  law,  put  an  end  to  the  contract.  It  could  be  rescinded  by 
Taylor  only  by  the  decree  of  a  court  of  equity ;  which  deci-ee  would,  of  course, 
require  full  eejuity  to  be  done  to  the  other  party,  under  all  the  circumstances. 
Pending  the  ejectment,  L.  made  several  propositions  for  payment,  varying  from 
the  original  conditions,  all  of  which  were  declined  by  T.  *  *  *  The  present 
bill  was  brought  in  the  succeeding  year  (after  the  recovery  in  the  ejectment),  and 
the  question  is,  whether,  under  all  the  circumstances  of  the  case,  L.  is  now  entitled 
to  a  specific  performance  of  the  contract  upon  paying  all  the  arrears  of  the  pur- 
chase-money. Undoiibtedly,  if  there  were  no  gi'ounds  of  excuse  shown,  account- 
ing for  the  delay  on  his  part  to  fulfill  the  contract  between  September,  1822,  when 
the  ejectment  was  brought,  and  June,  1825,  when  the  present  bill  was  filed,  there 
might  be  strong  reason  to  contend  that  he  was  not  entitled  to  a  specific  perform- 
ance of  the  contract."  (He  goes  on  to  state  the  facts  of  Chamber's  claim  and  suit, 
and  holds  that  while  the  title  was  thus  in  doubt  L.  was  excused  from  completing  his 
contract  with  Taylor,  and  this  accounts  for  and  excuses  his  delay  in  filing  the  bill.) 
"  There  is  no  ground  to  assert  that  from  the  commencement  of  the  present  suit  L. 
has  not  always  been  ready  and  willing  to  pay  up  the  arrears  of  the  jiurchase- 
money  and  to  complete  the  contract.  In  our  opinion  the  lapse  of  time  is  fairly 
accounted  for  by  the  state  of  the  title,  and  therefore  L.  has  not  been  guilty  of  any 
delay  which  is  unreasonable  or  inexcusable."  The  following  cases  also  illustrate 
the  doctrine  of  the  text :  Moote  v.  Scriven,  33  Mich.  500  (delay  by  the  vendee)  ; 
Sharp  V.  Trimmer,  9  C.  E.  Green,  422  (by  the  vendor);  Brassell  v.  McLemore,  50 
Ala.  476  (by  the  vendee). 
4G0 


44b  SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

entitled  to  a  specific  performance,  it  being  shown  tliat  the  delay  could 
be  suthciently  explained  and  excused,  and  that  it  had  not  been  in 
itself  prejudicial  to  the  other  party  beyond  the  means  of  reparation.(l) 
The  rule  is  applied  the  more  readily,  a  much  longer  delay  is  allowed, 
and  the  excuse  is  more  leniently  examined,  and  favorably  received, 
when,  during  the  period  of  delay,  the  purchaser  has  been  in  possession, 
and  has  been  i)erndtted  to  so  remain,  for  the  fact  of  such  possession 
rebuts'any  presumption  which  might  otherwise  have  arisen  from  the 
dehiy  that  the  contract  was  abandoned,  and  shows  that  in  tlie  inten- 
tion of  the  parties  it  was  still  kept  as  a  subsisting  and  binding  agree- 
ment ;  such,  at  all  events,  must,  ordinarily,  be  the  effect  of  the  pos- 
session. (2) 
In  delivery  of  deed  by  vendor 

Sec.  376.  The  doctrine  etpially  applies  to  the  purchaser  and  to  the 
vendor.  A  vendor,  who  has  not  complied  with  the  terms  of  his  agree- 
ment by  making  out  a  good  title,  or  by  conveying  or  offering  to  con- 
vey, at  the  stipulated  day,  may  still  obtairi  a  decree  for  specific  per- 
formance notwithstanding  his  delay,  provided  it  is  not  intentional, 
unreasonably  long,  or  so  injurious  to  the  vendee  that  an  enforcement 
would  be  inequitable.  This  results  directly  from  the  operation  and 
effect  of  the  contract  in  equity,  already  described,  which  vests  the 
equitable  estate  in  the  purchaser,  so  that,  being  the  beneficial  owner 
of  the  subject-matter  from  the  time  of  concluding  the  agreement,  he 
is  not  necessarily  nor  ordinarily  injured,  so  as  to  render  an  enforce- 
unjust,  by  a  delay  in  canying  out  the  contract  and  conveying  to  him 

(1)  GetchcU  V.  Jewett,  4  Me.  350  ;  Waters  v.  Travis,  9  Johns.  4.7)0  ;  Barbadoes 
Toll  Co.  V  Vreeland,  3  Green  Ch.  137  ;  Morgan  v.  Scott,  2  Casey,  51  ;  McLaughlin 
V.  Shields,  2  Jones,  2S3  ;  Jackson  v.  Ligon,  3  Leigh,  IGl  ;  Sai-ter  v.  Gt)rdon,  2 
Hill  Ch.  1:21;  Wightman  v.  Reside,  2  Dessaus.  578;  Ci-aig  v.  Martin,  3  J.  J. 
Marsh.  i30 ;  Gibbs  V.  Champion,  3  Ohio,  335  ;  Keller  v.  Fisher,  7  Ind.  718  ;  Ben- 
nett V.  Welch,  25  Ind.  140  ;  Brumfield  v.  Palmer,  7  Blackf.  227  ;  Hall  v.  Dela- 
plaine,  5  Wise.  206,  214  ;  Mason  v.  Wallace,  3  McLean,  148  ;  Hepburn  v.  Auld,  5 
Cranch,  202;  King -u.  Hamilton,  4  Pet.  311.  ^ 

(2)  Shepheard  v.  Walker,  L.  11.  20  Eq.  C59.  In  Waters  v.  Travis,  9  Johns.  45o' 
and  Barbadoes  Toll  Co.  v.  Vrcicland,  3  Green  Ch.  157,  a  period  of  from  twenty  to 
twenty-three  years  had  elapsed  between  the  making  and  the  enforcemetit  of  th(! 
contract,  the  vendee  being  in  jiossession.  See,  also,  on  this  point,  Baiianl  v. 
Walker,  3  Johns.  Cas.  CO;  Delavan  «.  Duncan,  49  N.Y.  485  ;  Bauin  v.  Dubois.  10 
Wright,  537;  Tate  u  Conner,  2  Dev.  Eip  224  ;  Eppinger  ».  McGreal,  31  Texjus 
147;[Byers«  Denver  Circle  Ry  Co  ,  13  Colo.  55  J.]  Possession  by  the  vendee,  with- 
out pajnnent  by  him  of  the  purchase-price,  does  not,  however,  prevent  the  statute 
of  limitations  from  running  against  his  right  of  action  which  has  accrued,  in  New 
York;  it  is  only  when  the  vendee  has  fully  perfoi-med  on  his  pai-t,  and  has  thus 
become  entitled  to  a  conveyance,  that  the  vendor  is  not  ]iermitted  to  set  up  the 
statute  of  limitations  as  a  defense    McCotter  f\  Lawrence,  <3T.  &C.  392  r  4IIun,  107. 

461 


TIME   AS  AFFECTING    THE   EIGHT.  449 

the  legal  estate ;  (1)  and  a  fortiori  the  delay  can  work  no  equitable 
injiiiy  to  him  when  he  has  possession  and  use  of  tho  land,  and 
receives  its  rents  and  profits  during  the  interval, (2)  If  the  vendor  is 
nnable  to  show  a  g-ood  title  at  the  time  prescribed  in  his  contract,  or 
even  at  the  commencement  of  his  own  suit,  it  is  suthciont,  therefore,  if 
he  perfects  it  before  the  final  hearing,  or  the  report  on  title  made  in 
the  progress  of  the  cause  by  the  master  or  referee. (;^) 

Sec.  377.  The  failure  of  the  vendor  to  fulfill  on  his  part  at  the 
appointed  time  will  not  defeat  or  prejudice  his  remedy,  if  the  pur- 
chaser has  acquiesced  in  the  default,  or  has  caused  or  promoted  it  by 
his  own  neglect  or  inability  to  pay  the  purchase-money  at  the  time 
or  in  the  manner  agreed.  A  vendee,  who  wishes  to  be  in  a  situation 
to  demand  punctual  performance  by  the  vendor,  must  himself  be 
punctual,  prompt,  and  ready.(4)  If  a  purchaser  finally  receives  all 
that  he  is  entitled  to  under  the  agreement,  including  possession  and 
a  conveyance  wdth  good  title,  and  did  not  demand  an  exact  perform- 
ance with  respect  to  time,  he  cannot  successfully  object  to  the  vendor's 
enforcement  of  his  own  liability  to  pay  the  price ;  but  if  at  the  time 
stipulated  for  completion  the  vendor  could    not    make  a  good  title 

(1)  Musselinan's  Appeal,  15  P.  F.  Smith,  480 ;  Bell's  Appeal,  21  P.  F.  Smith, 
465 ;  Morg'an  v.  Scott,  2  Casey,  51 ;  Ley  v.  Huber,  3  Watts,  367 ;  Tiernan  v. 
Roland,  3  Harris,  429  ;  Larison  v.  Burt,  4  W.  &  S.  27  ;  Townsend  v.  Lewis,  11 
Casey.  125  ;   Mays  v.  Swope,  8  Gratt.  46 ;  Daniel  v.  Leitch,  13  Gratt.  195,  213. 

(2)  Campbell  v.  Shrum,  3  Watts,  60  ;  Musselman's  Appeal,  swpra  ;  Bell's  Appeal, 
su2}ra,  and  cases  in  last  note  but  one. 

(3)  Jones  v.  Robbins,  29  Me.  351  ;  Beebe  v.  Dowd,  22  Barb.  255  ;  Dutch  Church 
tJ.  Mott,  7  Paige,  77  ;  Bi-own  v.  Haff,  5  Paige,  235  ;  Winne  v.  Reynolds,  6  Paige, 
407 ;  Seymour  v.  Delancy,  3  Cow.  445  ;  Allei-ton  v.  Johnson,  3  Saudf.  Ch.  73  ;  Ley 
V.  Huber,  3  Watts,  363  ;  Tiernan  v.  Roland,  3  Harris,  429,  436  ;  Wilson  v.  Tap- 
pan,  6  Hammond,  172  ;  Cotton  v.  Ward,  3  Monr.  313  ;  Luckett  v.  Williamson,  37 
Mo.  388  ;  Hepburn  v.  Dunlop,  1  Wheat.  179. 

(4)  Tiernan  v.  Roland,  3  Harris,  429,  440  ;  Campbell  v.  Shrum,  3  Watts,  60 ; 
Potter  V.  Tuttle,  22  Conn.  512  ;  Converse  v.  BUimrich,  14  Mich.  109 ;  Wallace  v. 
McLaughlin,  57  HI.  53 ;    Snyder  v    Spaulding,  57   111.  480,  487  ;    [Raymond  v. 

■«an  Gabriel,  etc  ,  Co  (C.  C.  A.),  53  Fed.  Rep  883] ;  as  to  the  rights  of  the 
parties,  where  both  have  done  nothing  to  perform  or  to  enforce  perfoi-mance 
at  the  appointed  time,  or  where  the  contract  itself  is  entirely  silent  with  respect 
to  the  time  of  completion,  see  Leaird  v.  Smith,  44  N.  Y.  618  ;  Van  Campen  •». 
Knight,  63  Barb.  205  ;  Knott  v.  Stephens,  5  Oreg.  235  ;  Crabtree  v.  Levings,  53  111. 
526.  Acts  of  a  vendor,  which  are  inconsistent  with  a  purpose  of  strictly  enforcing 
the  provisions  of  the  contract  in  respect  to  time — as,  for  example,  his  accepting 
the  unpaid  balance  of  the  price  after  a  condition  as  to  time  of  payment  has  been 
broken  by  the  vendee,  amount  to  a  waiver  of  objection  to  the  vendee's  default. 
Grigg  V.  Landis,  6.  C.  E.  Green,  494  ;  Brassell  v.  McLemore,  50  Ala.  476.  And  see, 
with  respect  to  a  waiver  by  either  party,  Garrett  v.  Ljmch,  45  Ala.  204  ;  Foley  V. 
Crow.  37  Md.  51  ;  Page  v.  Greeley,  75  El.  400. 

462         29 


450  Sl'KCIFTC    rKHFOh'MAXCK    OF   CONTRACTS. 

nor  give  the  possession,  and  the  possession  was  a  matter  of  real 
importance  to  the  vendee,  who  was  tlien  ready  and  willing  to  aecept 
it  and  pay  the  i)rice,  the  vemlnr  will  not  afterwards  be  able  toenforee 
performance  upon  the  objccliiig  piii'chasi'v.(  I )  Nor  can  ti  viMuhir,  in 
default  with  respect  to  tinu%  subsequently  obtain  the  relief  if  lie  did 
not  use  all  the!  means  within  his  power  toj)erfect  his  title  and  com- 
plete the  contract  within  a  reasonable  period  of  tim(;;(2)  nor  where 
he  fraudulently  concealed  the  defect  in  his  title  which  caused  his 
delay.(8) 

Clause  in  contract  declaring  it  void  or  forfeited  if  the  terms 
are  not  performed  at  the  prescribed  time. 
ISkc.  378.  As  a  special  case  under  the  general  doctrine  discussed 
in  the  foregoing  paragraphs,  it  remains  to  consider  the  effect  of 
such  a  clause.  It  is  assumed  that  the  contract  is  not  one  in  respect 
of  which  time  is  otherwise  essential,  either  imi)liedly  from  the 
nature  of  the  subject-matter  or  object  of  the  agreement,  or  expressly 
from  a  stipulation  incorporated  into  the  instrument  itself.  It  will 
appear  in  the  sequel  that,  according  to  the  weight  of  authority, 
such  a  clause  does  not,  without  something  further,  make  time  essen- 
tial. The  question,  therefore,  is,  what  is  the  effect  of  the  clause 
inserted  in  an  ordinary  contract  declaring  it  ended,  and  the  rights 
of  the  defaulting  party  under  it  forfeited,  if  the  terms  or  some  par- 
ticular term  are  not  complied  with  at  or  before  the  prescribed  day, 
when  in  fact  the  party  fails  to  perform  within  that  time  according  to 
his  stipulation  ?  At  law  such  a  clause  would  be  operative,  and  a  delay 
in  fulfilling  its  requirements  would  undoubtedly  work  a  forfeiture. 
Will  equity  relieve  against  such  a  forfeitvu'e  ?  The  general  doctrine 
W'hich  has  been  stated  in  the  preceding  paragraphs  of  this  section 
shows  that  this  question  must,  in  many  cases  at  least,  be  answered 
in  the  affirmative,  since  it  has  been  shown  that  equity  will  often,  and, 
indeed,  generally,  enforce  a  contract,  although  the  party  asking  relief 
has  lost  his  right  to  a  legal  remedy  by  his  omissson  to  comply  with 
the  provisions  in  respect  to  the  time  of  performance.  But  it  is 
necessary  to  examine  the  question  more  closely,  and  ascertain  the 
exact  conditions  under  which  equity  does  or  does  not  interpose  to 
relieve  against  such  a  forfeiture. 

(1)  Watts  V.  Waddle,  6  Pet.  389  ;  McKay  v.  Carington,  1  McLean,  51 ;  Cooper 
V.  Brown,  2  McLean,  495 ;  Tiernan  v.  Roland,  3  Harris,  429 ;  Taylor  v.  Porter,  1 
Dana,  422. 

(2)  KiufT  V.  Hamilton,  4  Pet.  311  ;  Tiernan  v.  Roland,  3  Harris,  429  ;  Grundy  v. 
Pord's  Ex'ors,  Litt.  Rel.  Cas.  129 ;    Rider  v.  Gray,  10  Md.  282,  286. 

(3)  Christian  v.  Cabell,  22  Gratt.  82. 

463 


TiMn  AS  affectj:!<g  the  right.  451 

Sec.  379.  The  fuudaiueutal  principle  upon  which  the  answer  to  the 
question  turns,  is  the  following-:  Where  a  Cdutraet  depends  upon  a 
condition  precedent ;  or,  in  other  words,  where  the  intention  of  the 
parties  is  that  no  right  shall  vest  until  certain  prescribed  acts  are 
done  or  omitted,  or  unless  certain  })rescribed  acts  are  done  or 
omitted,  at  or  beibre  a  specified  tinu^  then  equity  will  not  relieve 
against  a  breach  of  such  precedent  condition,  for  no  court  has 
the  power  to  make  a  new  contract  for  the  ])arties  which  shall  confer 
rights  wdiere  no  rights  at  all  originally  existed.  But  if  a  contract 
contains  a  condition  subsequent ;  or,  in  other  w^ords,  if  the  intention  of 
the  parties  is  that  the  rights  under  the  agreement  shall  vest  at  once 
upon  its  conclusion — subject,  however,  to  be  defeated  or  ended  upon 
the  non-performance  of  the  provision  which  constitutes  the  subsequent 
condition — or  its  non-performance  at  or  before  a  specified  day — then 
equity,  by  virtue  of  its  general  jurisdiction  over  penalties  and  for- 
feitures, has  power  to  relieve  the  defaulting  party  from  the  loss  or 
forfeiture  caused  by  his  breach  of  this  subsequent  condition.  Tliis 
power  of  relief  would  even  more  certainly  exist  when  the  breach  v.as 
a  failure,  not  to  do  the  thing  at  all,  but  merely  to  do  it  at  or  within 
the  time  stipulated  by  the  contract.  It  is,  therefore,  held,  in  a  great 
number  of  cases,  that  the  forfeiture  provided  for  by  such  a  clause  as 
the  one  described  above,  on  the  failure  of  the  party  to  fulfill  at  tho 
proper  time,  unless  such  failure  is  intentional,  or  causes  an  injury  to 
the  other  party  w^hich  cannot  be  compensated,  will  be  disregarded 
and  set  aside  in  equity ;  and  the  defaulting  party,  performing,  or 
being  ready  and  walling  to  perform,  at  a  subsequent  time,  will  be 
allowed  to  enforce  the  contract  notwithstanding  his  delay.  In  short, 
the  general  doctrine  is  applied  in  the  face  of  such  an  express  provi- 
sion declaring  the  contract  ended  in  case  of  a  non-fulfillment  of  its 
terms  at  the  appointed  day,  unless  the  agreement  is  so  worded  that  a 
compliance  with  these  terms  at  the  prescribed  time  is  made  a  condi- 
tion precedent  to  the  veating  of  any  rights.(l)     This  doctrine  has  not, 

(1)  Vernon  v.  Stephens,  2  P.  Wms.  66  ;  De  Camp  v.  Feay,  5  S.  &  R.  323,  320  ; 
Erlgerton  v.  Peckham,  11  Paig-e,  352,  359.  See  ante,  §§  335,  336  ;  Clark  v.  Lyons, 
25  III  105 ;  Snyder  v  Spaukling-,  57  111.  480,  484 ;  [Born  s  Appeal,  132  Pa. 
St.  467].  Comi^are,  in  connection  with  this  subiect,  the  cases  cited  post  under 
§  390.  In  McClartey  v  Gokey,  31  Iowa,  505,  a  contract  of  sale  stii^ulated 
that  on  failure  of  the  vendee  to  pay  the  installments  as  they  fell  due,  or 
"the  taxes  hereafter  to  become  due  each  year,"  the  contract  shoidd  be  forfeited, 
and  it  was  further  provided  that  time  should  be  of  the  essence  of  the  con- 
tract ;  default  was  made  by  the  vendee  in  paying  the  taxes  for  the  year 
1868,  and  the  vendor  paid  them  on  April  8,  1869  ;  but  on  May  22d,  1869, 
464 


452  SPECIFIC   PERFORMANCE   01    CONTRACTS. 

however,  been  followed  in  some  of  the  AmericaTi  decisions  which  liave 
enforced  such  provisions  as  to  the  time  of  payment,  according-  to  Ihcir 
literal  terms,  as  will  appear  from  cases  cited  in  the  pvei-e<liug  foot- 
note. 

Seo  380.  Where  th»^  (•h\use  provides  for  a  forfeiture  upon  the  non- 
payment of  the  purchase.price,  at  the  time  or  times  stipulated,  and 
is,  therefore,  intended  to  secure  punctuality  in  the  payment,  it  has 
been  regarded  almost  a  matter  of  course  for  a  court  of  equity  to  dis- 
regard it,   and  to  permit  a  subsequent   payment,  since  interest  is 

the  vendee  tendereil  to  him  the  amount  thereof;  held,  that  the  contriut  was  not 
forfeited  by  this  default  of  the  vendee.  The  court,  probably  imlucnfod  by  the 
hardship  of  the  case,  if  the  forfeitui-e  was  enforced,  thus  disreg-ardcd  the  express 
provision  by  which  the  i)arties  had  made  time  essential.  Sec,  iu  comparison. 
Snider  v  Lehnherr,  5  Oreg.  38.") ;  Peck  v  Brighton,  1)9  111.  200  ;  Phelp.s'U  lil.  Cent. 
R.  R.  63  111.  4(58.  The  case  of  Grey  v.  Tubbs,  43  Cal.  3.")0,  [followed  iu 
Cleary  v  Folger,  84  Cal.  316],  is  a  very  strong-  one,  in  holding  time  to 
be  made  essential  by  such  stipulations.  The  contract  was  for  the  sale  of 
certain  lots,  and  provided  for  the  price  to  be  paid  in  installments  upon 
designated  days,  and  added :  "  In  the  event  of  a  failure  to  comply  with  the  terras 
hereof  by  the  [vendee],  the  [vendor]  shall  be  released  from  all  obligations  in  law 
or  equity  to  convey  said  property,  and  the  [vendee]  shall  forfeit  all  right  thei-eto." 
The  default  consisted  in  not  paying  a  quarter's  interest  which  fell  due  January  1, 
1868,  but  it  was  tendered  on  the  last  day  of  February,  1868,  and  the  vendor  refused 
to  received  it,  declaring  that  the  contract  was  forfeited.  The  whole  amount  of 
principal  was  afterwards  tendered  within  the  time  stipulated  by  the  contract, 
together  with  the  interest  thereon.  The  court  held  that  the  stijiulation  above 
recited  had  made  time  essential,  and  that  the  vendee's  default  had  wrought  a  for- 
feiture of  the  contract.  Rhodes,  J.,  after  quoting  the  tei-ms  of  the  stipulation, 
says  (p.  364) :  "  It  would  be  difficult  to  express  with  greater  clearness  and  cei-- 
tainty  than  the  parties  did  in  this  contract,  that  time  is  of  the  essence  of  the  con- 
tract, excejit  it  were  done  by  the  insertion  of  those  very  words  in  the  instrument. 
Courts  of  eiiuity  have  not  the  power  to  make  contracts  for  parties,  nor  to  alter 
those  which  the  parties  have  deliberately  made ;  and  whenever  it  api)ears  that 
the  parties  have  in /aci  contracted,  that  if  the  jmrchaser  make  default  in  pay- 
ments, as  agreed  u])on,  he  shall  not  be  entitled  to  a  conveyance,  and  shall  lose  the 
benefit  of  his  jmrchase  ;  and  when  it  also  appears  that  the  jiurchaser  is  without 
excuse  for  his  delay,  the  coui-ts  will  not  relieve  him  from  the  consequences  of  his 
default.  They  will  not  inquire  into  the  motive,  or  the  sufficiency  of  the  motive,  that 
induced  the  parties  to  contract  that  time  should  be  essential  in  the  performances 
of  any  of  the  agreements  contained  in  the  contract  of  purchase ;  but  if  it  ajijiears 
that  the  parties  have  thus  contracted,  the  courts  of  equity  will  not  disregard  the 
conti'act  in  order  to  give  effect  to  some  vague  surmise  that  all  that  the  vendor 
intended  to  secure  by  the  contract  was  the  payment  of  the  jnirchase-money,  with 
interest,  at  some  indefinite  time."  The  peculiarity  of  this  decision  lies,  not  in 
holding  that  when  time  has  been  made  essential,  the  contract  will  be  enforced  in 
equity,  according  to  its  terms,  but  in  holding  that  time  is  made  essential  by  such 
8tii:)ulations  as  the  one  in  this  case.  Compare  with  this  decision  the  cases  of  Fai'- 
ley  V.  Vaughn,  11  Cal.  227  ;  Steele  v.  Branch,  40  Cal.  3. 

4G5 


TTME   AS    AfT'ECTTNG    THE   RIGHT.  453 

treated  as  a  sufficient  compensation  for  the  delay.(l)  But  even  here 
the  failure  must  not  be  willful,  nor  the  delay  unreasonable. (2)  If  the 
forfeiture  is  nuide  to  result  from  the  vendor's  failure  to  i)erfect  his 
title,  or  to  execute  a  conveyance  at  the  appointed  day,  a  court  of 
equity  does  not  so  readily  disregard  it,  as  in  the  case  of  non-payment, 
probably  because  there  is  no  certain  standard,  like  interest,  by  which 
the  compensation  may  be  measured  and  fixed.  In  order  that  the  for- 
feiture resulting  from  this  cause — from  the  vendor  s  failure  to  perform 
at  the  time — may  be  set  aside,  and  his  subsequent  performance 
admitted,  the  default  itself  must  happen  through  accident  or  mistake, 
and  the  loss  or  injury  done  to  the  purchaser  must  be  susceptible  of 
compensation.  (8) 

Sec.  381.  Acts  of  part  performance  by  the  purchaser — taking  pos- 
session of  the  land,  part  payment  of  the  price,  the  making  of  valuable 
improvements — may,  of  themselves,  constitute  a  separate  and  sufficient 
ground,  independently  of  the  provisions  of  the  contract,  for  relieving 
him  from  the  effects  of  a  forfeiture  incurred  by  him  through  failure 
to  complete  his  performance  within  the  allotted  time. (4)  If  the 
defendant's  delay,  or  default,  has  caused  the  plaintiff's  failure  to  per- 
form in  time,  he  cannot  object  to  such  failure  as  a  defense,  however 
plain  and  explicit  may  be  the  provision  of  the  contract  requiring 
punctuality. (5)  A  vendor,  who  cannot  make  a  clear  title  in  time, 
cannot,  therefore,  set  up  the  purchaser's  default  in  prompt  payment 
of  the  price. (6)  Finally,  the  condition  of  forfeiture  may  be  waived, 
and  is  waived  by  the  conduct  of  the  party  entitled  to  enforce  it,  which 
is  only  consistent  with  the  continued  efficacy  and  subsisting  obligation 
of  the  contract. (7) 

Time,  when  essential. 

Sec.  382.  II.  Although,  in  ordinary  cases,  time  is  not  essential, 
yefc  it  may  be,  and  is,  essential  whenever  the  intention  of  the 
parties,  as  shown  by  the  contract,  is  clear   that   the   performance 

(1)  Sanborn  v  Woodman,  5  Cush.  30  ;  Wells  v.  Smith,  7  Paige,  22,  24,  28 ;  De 
Camp  V.  Feay,  5  S.  &  R.  823,  326  ;  Remington  v.  Irwin.  2  Harris,  143,  145  ;  Hall 
■p.  Delaplaine,  5  Wis.  206  ;  and  cases  cited  in  the  last  note  ;  but  see  Grey  v.  Tubbs, 
43  Cal.  859  ;  [Cleary  v  Folger,  84  Cal.  316;  O'Connor  v.  Hughes,  35  Minn.  446. 

(-')  Jones  V  Robbins,  29  Me.  351 ;  Hancock  v.  Carlton,  6  Gray,  39  ;  fSanford  v. 
Weeks,  38  Kan.  319  ;  Voltz  v.  Grummelt,  44  Mich.  453.] 

<;5)  Hill  V.  Barclay,  In  Ves.  402;  18Ves.  56;  Reynolds  v.  Pitt,  19  Ves.  134; 
Jones  1?   Robbins,     9  Me.  351 -,  Paschall  v.  Passmoi-e,  3  Harris,  295,  306. 

(4)  Edgerton  v.  Peckham,  11  Paige,  352,  859  ;  Bellamy  v.  Ragsdale,  14  B.  Mon. 
293  ;  [University  of  Des  Moines  v.  Polk  Cy.,  etc.,  Co.  (Iowa),  53  N.  W.  Rep.  1080 
(erection  of  a  building)  ] 

(5)  Potter  V.  Tuttle,  22  Conn.  512  ;  Snyder?).  Spaulding,  57111.  480,  487  ;  [Mans- 
field V  Hodgdon,  147  Mass  304;  Powell  v  Higley  (Ala  ),  7  So.  Rep.  440  (default 
■of  vendee  excused  by  vendor's  bringing  a  suit  in  ejectment  against  him) ;  Watson 
-M.  White  (111  ),  38  N.  E.  Rep.  902  (Oct.  29,  1S94)]. 

(6)  Converge  v.  Blumrich,  14  Mich.  109  ;  Wallace  v.  McLaughlin,  57  111.  53. 

(7)  Ewing  v.  Gordon,  49  N.  H.  460 ;  Sharp  v.  Trimmer,  9  C.  E.  Green,  422. 

466 


454  SPECItlC  PERFORM  A  SCE  OF  CO.\'l  RACTS. 

of  its  terms  and  should  be  accomplislied  punctually  at  the  stipulted 
day;  it  is  a  matter  of  intention,  and  the  intention  must  govern. (1) 
This  intention  may  be  shown  either  by  the  nature  of  the  subject- 
matter  or  puiposo  and  object  of  the  agreement,  or  it  may  be 
embodied  in  an  express  stipulation.  There  are  three  cases  to  be 
examined,  in  the  lirst  two  of  which  time  ,is  made  essential  by  the 
terms  of  the  original  contract,  while  in  the  third,  not  being  originally 
essential,  it  becomes  so  by  the  subsequent  acts  of  one  of  the  parties. 
They  are,  1,  where  the  essential  quality  of  time  inheres  in  the  very 
nature  of  the  subject-matter,  or  in  the  object  of  the  agreement; 
2,  where  it  is  the  subject  of  an  express  stipulation  ;  and  3,  where 
time  not  being  orginally  essential,  one  of  the  parties  delays  in  fulfill- 
ing his  terms  of  the  agreement,  and  the  other  party,  by  a  notice, 
prescribes  a  definite  period  within  which  the  contract  must  be  com- 
pleted or  else  be  abandoned.  I  shall  consider  these  cases  separately 
in  the  order  stated. 

"Where  time  is  originally  essential  from  the  nature  of  the  sub- 
ject-matter, or  from  the  purpose  and  object  of  the  contract. 

Sec.  3  3.  1.  There  are  several  particular  kinds  or  species  of  contracts, 
in  respect  of  which  it  is  firmly  settled,  by  the  English  decisions,  that 
time  is  essential  on  account  of  the  subject-matter,  or  the  purpose  for 
which  the  agreement  is  made.  Some  of  these  instances  seem  to  be 
peculiar  to  the  modes  of  conducting  business  and  the  special  forms  of 
ownership  which  prevail  in  England,  and  are,  therefore,  confined  to 
that  country.  But  the  doctrine  which  underlies  them  all  has  been 
fully  recognized  and  adopted  in  the  United  States,  and  is  constantly 
applied  to  the  cases  within  it,  which  arise  from  our  simpler  modes  of 
conveyancing  and  species  of  estates. 

Sec.  384.  When  the  nature  of  the  subject-matter  is  such  that 
its  value  necessarily  changes — that  is,  cither  increases  or  decreases 
with  the  mere  lapse  of  time — time  is  then  of  the  essence  of  the  contract, 
and  performance  must  be  completed  at  the  specified  period.  The  most 
common  and  plain  example  of  this  rule  may  be  seen  in  agreements 
for  the  sale  of  reversionary  interests. (2)  It  would  seem  also  that  con- 
tracts by  a  lessee  for  the  sale  or  assignment  of  leasehold  interests, 

(1)  See  Hipwell  v.  Knight,  1  Y.  &  C.  Ex.  401  ;  Grey  v.  Tubbs,  43  Cal.  350  ; 
Miller  v.  Miller,  25  N.  J.  Eq.  354  ;  Knott  v.  Stephens,  5  Oreg.  235  ;  Quinn  r. 
Roath,  37  Conn.  16  ;  King  ().  Riuikinan,  5  C.  E.  Green,  316  ;  Bullock  v.  Adams,  5 
C.  E.  Green,  367  ;  Prince  v.  Griffin,  27  Iowa,  514  ;  [Cleary  v.  Folger.  84  Cal.  316  ; 
Crossfield  v.  Gould,  9  Ont.  Ap.  R.  218]. 

(2)  Hipwell  V.  Knight,  1  Y.  &  C.  Ex.  401,  416,  per  Andersox,  B.  :  "  If.  tlicjv- 
fore,  the  thing  sold  be  of  greater  or  less  value  aci;or(ling  to  the  ofHuxtion  of  time, 
it  is  manifest  that  time  is  of  the  essence  of  the  contract  ;  and  a  stipulation  as  to 

4tJ7 


TIME  AS   AFtECTiyO    'lllE  RIGUT.  455 

terms  f  jr  years,  and  also  life  estates,  must  fall  under  the  same  rule.' 
Closely  aaal'jgous  iu  form,  and  really  governed  by  the  siv.ue  princi- 
ple, is  the  case  of  contracts  the  subject-matter  of  which  is  from  its 
nature  liable  to  frequent,  sudden,  or  considerable  changes  or  fluctua- 
tions in  value;  but  in  England  it  would  seem  hardly  possible  that  an 
agreement  for  the  sale  of  land  could  fall  under  this  particular  rule, 
and  its  operation  is  there  confined  to  other  kinds  of  subject-matter.(l) 
In  the  United  States — at  least  in  some  of  the  states — the  value  of 
land  in  a  given  locality  is  not  so  stable  as  in  England  ;  it  is  subject 
to  more  rapid  rises  and  falls ;  it  is  often  exceedingly  fluctuating,  and 
even  speculative.  As  a  consequence  of  this  fact,  the  American  courts 
have  been  more  liberal  than  the  English  in  extending  the  above  rule 
concerning  the  effect  of  fluctuation  of  value,  to  contracts  for  the  sale 
of  land ;  not,  of  course,  to  the  extent  of  impairing  the  general  doc- 
trine that  time  is  non-essential  in  agreements  for  the  sale  of  land, 
but  special  circumstances  of  the  case  are  more  regarded,  and  their 
effect  is  allowed  to  be  more  controlling. (2)      In  like  manner,  and  for 

time  must  there  be  literally  complied  with  in  equity  as  well  as  at  law."  Newman  ■». 
Rog-ers,  4  Bro.  C.  C.  391,  393,  per  Lord  Rosslyn  :  "For  no  man  sells  a  reversion 
who  is  not  distressed  for  money,  and  it  is  ridiculous  to  talk  of  making  him  a 
compensation  by  giving-  him  interest  on  the  purchase-money  during  the  delay." 
See,  also.  Spurrier  v.  Hancock,  4  Ves.  G67 ;  Carter  v.  Dean  of  Ely,  7  Sim.  211  ; 
Hoyt  V  Tuxbury,  70  III  331 ;  [Pickering  v   Pickering,  38  N.  H.  400] 

(1)  See  Doloret  v.  Rothschild,  1  S.  &  S.  590. 

(2)  In  McKay  v.  Carrington,  1  McLean,  50,  it  was  held  that  where  land  has 
been  bought  for  the  purpose  of  selling  again,  and  its  value  had  greatly  diminished, 
and  wrong  would  be  done  to  the  defendant  by  enforcing  it  after  a  delay,  time 
would  be  regarded  in  equity  as  essential ;  [and  see  Crossfield  u  Gould,  9  Ont.  Ap 
R.  218.  In  Hawley  v  Jelly,  25  Mich.  94,  the  land  contracted  to  be  sold  was  near 
a  proposed  city  park,  upon  which  there  was  to  be  a  vote  of  the  freemen  of  the 
city  in  a  few  days,  and  a  delay  of  a  few  hours  was  held  fatal] ;  and  in  Pillow  v 
Pillow,  3  Humj)h.  644,  a  judgement-creditor  and  his  debtor  agreed  that  the  latter 
should  pay  the  judgment  in  land  at  a  price  to  be  fixed  by  valuers  ;  the  debtor 
delayed  his  performance  until  the  land  has  largely  risen  in  value,  and  it  was 
held  that  he  could  not  then  enforce  performance  upon  the  creditor ;  see,  also, 
Holt  '0  Rogers,  8  Pet  420  ;  Jones  v  Robbins,  29  Me  351 ;  Hoyt  v  Taxbury,  70 
111.  331  ;  Brashier  v.  Gratz,  6  Wheat  528  ;  Jennisons  v.  Leonard,  21  Wall.  302  , 
Goldsmith  v  Guild,  10  Allen,  239 ;  Kirby  v.  Harrison,  2  Ohio  St  326,  332  ; 
Richmond  v  Gray,  3  Allen,  25;  Hepburn  v  Auld,  5  Cranch,  262;  [Myers 
V.  League  (C  C.  A.),  62  Fed  Rep  654  ;  Durant  v.  Comegys  (Idaho),  28  Pac. 
Rep.  425  (mining  property).]  In  Brashier  v  Gratz,  6  Wheat  528,  which  was 
a  suit  by  vendee  for  a  specific  performance,  the  vendor's  title  at  the  date  of  the 
contract  was  doubtful,  and  a  suit  by  a  third  person  was  then  pending  against 
him  to  recover  the  land ;  but  the  vendee,  knowing  these  facts,  agreed  to  take 
the  risk,  and  gave  his  notes  for  the  price,  payable  at  certain  fixed  dates.  Vendee 
did  not  pay  these  notes  when  they  fell  due,  but  waited  until  the  suit  against  the 
vendor  ended  in  his  favor,  and  then  offered  the  price,  and  on  refusal  by  the 
vendor  brought  the  suit  to  enforce.  Held,  that  as  the  plaintiff  contracted  to  buy 
the  vendor's  interest,  and  as  this  depended  for  its  value  upon  uncertain  and 
future  evonts,  he  could  not  lie  by  until  the   doubt   was  settled  in  the  vendor's 

4dd 


456  SPECIFIC  J'ERFOUMANCE    OF  CONTRACTS. 

the  same  reason,  if  the  consideration  of  the  contract  is  in  its  nature 
changeable,  fluctuating,  or  perishable,  time  would  be  ;7n;/?a/afit^  essen- 
tial, or  at  least  very  material. (1) 

favor,  jiiul  then  enforce  a  performance.  In  Jennisons  v.  Leonard,  21  Wall.  302, 
woodland,  chiefly  valuable  for  the  timber,  was  sold  for  !?:27,000,  payable  in 
monthly  installments  in  proi^ortion  to  the  amount/ of  timber  cut,  the  price  to  be 
fully  paid  up  within  three  years.  The  vendee  for  a  short  time  complied  with 
the  terms,  but  soon  failed  to  j^ay  in  proportion  to  the  amount  of  timber  cut,  and 
the  amount  of  ;ji5,000  of  arrears  had  accumulated.  Held,  that  time  was  essential, 
and  the  vendor  might,  without  giving  notice,  or  returning  collateral  securities  in 
his  hands,  retake  possession  of  the  land,  and  sell  the  cut  timber,  and  apply  the 
proceeds  in  payment,  and  might  at  same  time  sue  to  recover  the  balance  of  the 
arrears.  Hunt,  J.,  in  delivering  the  opinion,  said :  "It  is  contended  that  the 
vendor  had  no  right,  under  the  contract,  to  re-enter  upon  the  premises  and  take 
possession  of  the  down  timl)er.  This  contention  is  based  upon  the  idea  that  time 
was  not  of  the  essence  of  the  contract,  and  that  although  the  vendee  was  in  ai-i-ears 
of  payment  to  an  amount  exceeding  $5,000,  this  gave  no  right  to  the  vendor  to 
declare  the  contract  forfeited.  Considering  that  the  intention  of  the  parties 
determines  the  question,  the  claim  can  scarcely  be  sustained  in  relation  to  a  sale 
of  timber  lands,  where  the  entire  value  of  the  estate  consists  in  the  timber  stand- 
ing upon  them,  and  where  it  is  provided  that  there  shall  be  monthly  payments  ,to 
be  regulated  by  the  quantity  of  timber  cut,  and  where  it  is  provided  that  a  given 
quantity  shall  be  cut  during  every  month.  That  the  jiarties  should  not  have  intended 
to  require  the  j^ayments  to  be  kept  up  in  the  ratio  of  the  cutting,  and  that  the 
vendor  should  not  have  intended  to  reserve  his  only  practical  pi-otection  in  this 
respect,  viz.,  a  right  of  entry  in  the  case  of  a  failure,  cannot  readily  be  believed. 
*  *  *  This  was  one  of  the  sales  of  real  estate  by  contract,  so  common  in  this 
country,  in  which  the  title  remains  with  the  vendor,  and  the  possession  i)asses  to 
the  vendee,  the  legal  title  remains  in  the  vendor,  while  an  equitable  interest  vests 
in  the  vendee  to  the  extent  of  the  payments  made  by  him.  As  his  payments 
increase,  his  equitable  interest  increases,  and  when  the  contract-price  is  fully 
paid,  the  entire  title  is  equitably  vested  in  him,  and  he  may  compel  a  convey- 
ance of  the  legal  title  by  the  vendor,  his  heirs  or  his  assigns.  The  vendor  is 
a  trustee  of  the  legal  title  for  the  vendee  to  the  extent  of  his  payment.  The 
result  of  this  state  of  things  is  quite  unlike  that  of  a  conveyance  subject  to  a  con- 
dition subsecpient  which  is  broken,  and  where  a  re-entry  or  claim  of  title  for 
condition  broken,  is  necessary  to  enable  the  vendor  to  restore  to  himself  the  title 
to  the  estate.  The  legal  title  having  in  that  case  passed  out  of  him,  some 
measures  are  necessary  to  replace  it.  In  the  case  of  a  contract  like  that  we  are 
considering,  no  legal  title  passes.  The  interest  of  the  vendee  is  equitable  merely, 
and  whatever  puts  an  end  to  the  equitable  interest — as  notice,  an  agreement  of 
the  parties,  a  surrender,  an  abandonment — places  the  vendor  where  he  was 
before  the  contract  was  made."  See  Doar  v.  Gibbes,  1  Bailey  Ch.  371  ;  Colcock  v. 
Butler,  1  Dessaus,  307  ;  Jackson  v.  Edwards,  22  Wend.  4t)8  ;  [United  States  v. 
Koe,  23  How.  312]. 

(1)  Goldsmith  v.  Guild,  10  Allen,  239,  the  vendor  contracted  to  sell  land  in  1864. 
while  the  value  of  legal-tender  notes,  as  compared  with  gold,  was  constantly  fluc- 
tuating. The  contract,  dated  March  19th,  but  not  signed  and  (h'livered  until 
March  23d,  ])iovided  that  "the  p.npers should  ])a.';a within  ten  days."  The  vendee 
contended  thrit  the  ten  days  should  run  from  the  delivery  of  the  contract  on  the 
23d  ;  the  vendor  that  they  commence  from  the  dat(!,  the  19th.     The  vendor  waa 

4(J9 


TIME   AS  AFFECTIAQ    TUK   RIGHT.  457 

Sec.  385.  Under  the  rule  concerning  a  subject-matter  fluctuating  in 
value,  it  is  settled  that  time  is  essential  in  contracts  for  the  sale  and 
purchase  of  public  stock  ;(1)  and  in  those  relating  to  the  transfer  of 
shares  in  business  corporations  and  joint-stock  companies  ;(2)  and 
in  contracts  for  life  ainiuities.(o)  Another  very  important  class  of  con- 
tracts, in  which  time  is  essential  from  the  very  object  and  purpose  of  the 
agreement,  consists  of  those  made  with  the  direct  object  of  promot- 
ing or  carrying  out  business  and  commercial  enterprises,  includ- 
ing those  for  the  sale  and  purchase  of  land  to  be  used  for  carrying  on 
trade  and  business. (4)  Another  class  embraces  contracts  for  the  sale 
and  purchase  of  a  dwelling-house  and  accompanying  land  for  the  pur- 
ready  and  willing  to  convey  on  the  29th,  but  the  vendee  refused  to  pay  before 
April  2d,  and  on  that  day  he  tendered  the  pi-ice  which  was  I'efused  on  the  ground 
that  it  was  too  late.  The  vendee  thereupon  sued  for  a  specitic  performance,  but 
his  claim  was  dismissed,  the  court  deciding-  in  favor  of  the  defendant's  contention 
that  plaintiff's  right  had  been  lost  by  the  lapse  of  time.  The  court,  per  Chap- 
man, J.,  said  :  *'  The  strict  i-ule  of  law,  in  I'espect  to  time  as  an  essential  part  of  a 
contract,  does  not  prevail  in  equity,  and  the  doctrine  that  "time  is  not  of  the 
essence  of  the  contract,"  has  been  applied  in  many  cases.  But  this  doctrine 
applies  to  sales  of  property  only  in  cases  where  time  is  immaterial  to  the  value,  and 
is  urged  only  by  way  of  pretense  or  evasion  [this  is  certainly  a  very  incorrect  and 
partial  statement  of  the  doctrine],  and  does  not  apply  to  a  sale  of  property  the 
value  of  which  is  subject  to  daily  fluctuation.  Doloret  v.  Rothschild,  1  S.  &  S. 
590.  In  this  country  time  is  regarded  as  more  important  in  respect  to  the  sale  of 
land  than  in  England,  because  the  value  of  land  is  moi-e  fluctuating  here  than 
there.  Hepburn  v.  Auld,  5  Cranch,  2G2 ;  Richmond  v.  Gi'ay,  3  Allen,  25.  In  the 
present  case,  the  evidence  tends  to  show  that  the  property  was  subject  to  frequent 
fluctuations  in  value  on  account  of  the  frequent  and  almost  daily  fluctuations  in 
the  gold  market,>and  that  there  was  an  actual  change  in  its  value ;  and  we  can- 
not doubt  that  time  was  not  only  an  essential  part  of  the  contract  in  fact,  but  that 
it  was  so  regarded  by  the  parties  when  they  made  their  contract."  See  Boo  ten 
V.  Scheffer,  21  Gratt.  474,  where  the  consideration  was  payable  in  confedei-ate 
notes  which  were  rapidly  depi'eciating.  But  the  case  is  not  strictly  in  point,  since 
there  was  the  additional  element  of  the  vendee's  intentional  delay  until  the  notes 
had  fallen  in  value,  so  that  he  could  take  advantage  of  their  decline. 

(1)  Doloret  v.  Rothschild,  1  S.  &  S.  590  ;  Forrest  v.  Elwes,  4  Ves.  492. 

(2)  Sparks  v.  Liverpool  "Water- Works  Co.,  13  Ves.  428;  Campbell  v.  London  & 
Brighton  Ry.  Co.,  5  Hare,  519. 

(3)  Withy  V.  Cottle,  T.  &  R.  78. 

(4)  Coslake  v.  Till,  1  Russ.  376  ;  Walker  v.  Jeffreys,  1  Hare,  341 ;  Wright  v.  How- 
ard, 1  S.  &  S.  190  ;  Seaton  v.  Mapp,  2  Coll.  C.  C.  556 ;  Parker  v.  Frith,  1  S.  &  S. 
199,  n.  ;  Macbryde  v.  Weeks,  22  Beav.  533.  This  rule  has  been  applied  to  a  con- 
tract for  the  sale  of  land  purchased  for  the  erection  of  mills.  Wright  v.  Howard, 
1  S.  &  S.  190.  It  is  also  applied  to  contracts  for  the  sale  of,  or  relating  to  mines 
and  woi-ks  connected  with  them,  on  the  grotmd  that  the  business  is  so  fluctuating, 
uncertain  and  speculative.  Prendergast  ?j.  Turton,  1  Y.  &  C.  C.  C.  110,  per  Knight- 
Bruce.  V.  C;  Clegg-?).  Edmondson.  26  L.  J.  Ch.  673.  681,  per  Knight-Bruce.  L. 
J.  ;  Parker  v.  Frith,  1  S.  &  S  199.  n.;  Citv  of  London  v.  Mitford,  14  Ves.  5^.  per 
Ld.  Eldon  ;  Eads  tj. Williams,  4  DeG.  M.  &  G.  674 ;  Macbryde  uWeeks,  22  Bcav. 

470 


1 


40O  S/'KC/Ff    I'EKF'Dli.H.WCK    OF   COXTRACTS. 

pose  of  being  u.sed  by  the  vendee  as  a  resitleiiee  ;(1)  but  this  does  not 
include  Those  for  the  sale  and  purchase^  of  l;iinl  to  l>e  ii-^cd  for  tlie  ]inr- 
pocse  of  buildiny  a,  residence. (-J) 

Sec.  086.  Tlie  followinti'  arc^  some  fiirthci-  particular  kinds  of  con- 
tracts in  whicli  time  has  beeti  held  to  be  essential :  for  tin;  sale  of  an 
estate  to  pay  oft  the  debts  of  the  vendor  when  they  bear  a  liigher  rate 
of  interest  than  lie  would  receive  on  the  unpaid  purdiase-price  ;(H) 
covenants  to  renew  leases  for  lives  or  for  years  ;(4)  contracts  in  which 
the  price  is  to  be  fixed  by  valuers; (5)  contracts  in  which  the  money 
to  be  paid  is  to  be  shared  among-  the  members  of  a  fluctuating  body, 
as  an  ecclesiastical  cor^joration  in  Enii'land.(G)  If  a  contract  s:ipu- 
lates  that  time  shall  be  essential  with  respect  to  j)rovisions  which  are 
in  the  vendor's  favor,  a  coiirt  of  equity  will  regard  it  as  also  essential 
with  respect  to  the  provisions  favorable  to  the  vendee,  so  as  to  prevent 
what  might  otherwise  be  unjust  and  inequitable. (7)  And  in  general, 
whenever,  from  the  terms  of  the  agreement,  or  from  the  nature  of  the 
subject-matter,  the  treating  time  as  non-essential  would  produ(^e  a 
hardship,  and  delay  by  one  party  in  completing  or  in  conqjlying  with 
a  term,  would  necessarily  subject  the  other  party  to  serious  injury  or 
loss,  time  will  be  held  essential. (8) 

Sec.  387.   Unilateral  contracts. — In  respect  to   unilateral    c  )ntracts, 

538.  To  a  contract  providing  for  a  supply  of  coal,  which  fluctuated  in  value  from 
day  to  day,  Pollard  v.  Clayton,  1  K.  &  J.  462  ;  Crofton  t).  Ornishy,  2  Hch.  &  Lef. 
604,  per  Lord  Redesdale.  To  a  contract  for  the  pui-chase  of  patent  rights,  Payne 
V.  Banner,  15  L.  J.  Ch.  227.  And  in  England  to  contracts  for  the  sale  of  apuV)lic- 
house,  tavern,  as  a  going  concern,  so  that  if  the  title  is  not  made  out  at  the  day,  the 
vendor  cannot  enforce  a  specific  performance.  Cowles  y.Gale,  L.  R.  7  Ch.  12  J 
Day  V.  Luhke,  L.  R.  5  Eq.  336.  [The  defendant.  P.,  was  engaged  in  the  business 
of  manufacturing,  jiurchasing,  and  selling  cloaks  anil  garments  and  all  materials 
therefor;  the  plaintiff,  C,  was  in  his  employ  as  manager.  By  the  terms  of  the 
agreement,  C.'s  employment  might  be  terminated  on  sixty  days'  notice  l>y  P.  ;  but 
C.  was  given  the  right  and  privilege,  within  the  time  of  such  notice  to  i^urchase 
the  defendant's  business.  Held,  that  time  was  of  the  essence  of  this  contract,  and 
that  the  plaintiff  must  not  only  communicate  his  decision  to  purchase  within  the 
time  limited,  but  must  offer  or  tender  the  amount.  "  The  business  and  stock  were 
fl actuating  from  day  to  day.  *  *  *  The  plaintiffs  employment  certainly 
ceased  at  the  expiration  of  the  sixty  days.  If  he  iiurchased,  the  defendant  must 
immediately  take  charge  of  the  business.  *  *  *  If  we  hold  that  time  was  not 
of  the  essence  of  the  contract,  the  defendant  would  be  exposed  to  uncertainty  and 
risk  ;  it  would  materially  change  his  rights  and  resjionsibilities,  and  it  would  be 
inequitable  and  unjust  so  to  hold."     Carter  %\  Phillips,  144  Mass.  100,  103.] 

(1)  Levy  -w.  Lindo,  3  Meriv.  81 ;  Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  67  ;  in  this  cjise 
vendor  agreed  to  give  the  **  possession  "  at  a  certain  day  ;  he  offered  to  deliver 
the  possession,  but  had  not  a  good  title  at  that  time.  Held,  "possession"  meant 
possession  with  a  good  title.     But  see  Webb  v.  Hughes,  L.  R.  10  E(p  281. 

(2)  Wells  V.  Maxwell.  32  Beav.  408. 

(3)  Popham  v.  Eyre,  Loilt,  786. 

(4)  Eaton  v.  Lyon,  3  Ves.  690. 

(5)  Morse  v.  Merest,  6  Mad.  27. 

(6)  Carter  v.  Dean  of  Ely,  7  Sim.  211. 

(7)  See  Seaton  v.  Mapp,  2  Coll.  C.  C.  564,  per  Knight-Brdce,  V.  C. 

(8)  In  Coslake  v.  Till,  1  Russ.  376,  a  tenant  who  had  no  interest  for  any  definite 
time,  agreed  to  sell  his  good-will  ami  business,  the  transfer  to  be  Cdmjileted  at  a 
certain  day  named  ;  and  the  provision,  in  resjiect  to  completion,  was  ht'lde.ssential, 
since,  if  the  transfer  was  not  made  011  that  day,  the  vendor  might  render  himself 
liable  as  a  tenant  for  the  ye.ar  next  following.  And  see,  also.  Gale  v.  Ai-ch(>r,  42 
Bai-b.  320  ;  Booten  v.  Scheffei-.  21  Gi-att.  474. 

471 


TIME  AS   AFFECTING    THE   RIGHT.  459 

Unilateral  contracts. 

Sec.  387.  In  respect  to  unilateral  contracts,  there  is  some  discrep- 
ancy among  the  authorities.  One  group  of  decisions  holds  that  with 
respect  to  them,  time  is,  and  necessarily  nuist  be,  essential,  in  the  strict 
sense  of  the  term;  while  anoiher  group  holds  that  time  is  merely 
material,  and  not  essential.  This  conflict  nuiy,  perhaps,  be  recon- 
ciled by  a  suggestion  drawn  from  the  form  and  provisions  of  the  con- 
tracts themselves.  Where  the  contract  is  really  an  offer  on  one  side, 
with  a  provision  that  this  offer  must  be  assented  to  and  accepted,  when 
a  mere  acceptance  is  contemplated,  or  payment  must  be  made,  when 
payment  was  the  act  of  acceptance  contemplated,  at  or  before  a  speci- 
fied date,  then,  of  course,  the  act  of  assent  or  of  payment  must  be  done 
within  the  prescribed  time,  and  time  is  from  the  very  form  of  the  con- 
tract essential.  If,  therefore,  a  vendor  agrees  to  convey,  if  payment 
be  made  at  or  before  a  given  date,  or  if  an  option  is  given  which  is  to 
be  accepted  by  payment  within  a  given  time,  then  the  time  of  the 
payment  is  certainly  essential;  in  fact,  payment  is  a  condition  prece- 
dent to  the  vesting  of  any  right  in  the  vendee.  If,  however,  the  offer 
or  option  given  requires  an  assent  and  acceptance  within  a  given  time, 
such  assent  must  be  made  within  the  time  prescribed,  and  the  contract 
thereby  becomes  concluded  and  mutual ;  but  whether  time  is  essential 
with  respect  to  its  subsequent  performance,  must  depend  upon  its 
object  or  the  nature  of  its  subject-matter.(l) 

(1)  Brooke  v.  Garrod,  3  K.  &  J.  608  ;  2  DeG.  &  J.  62  ;  Austin  v.  Tawney,  L.  R. 
2  Ch.  143;  Lord  Ranelagh  v.  Melton,  2  Dr.  &  Sm.  278;  10  Jur.  (N.  S.)  1141; 
Weston  V.  Collins,  11  Jur.  (N.  S.)  190  ;  Mason  v.  Payne,  47  Mo.  517  ;  Potts  v. 
Whitehead,  ,5  C.  E.  Green,  55  ;  Kerr  v.  Purdy,  51  N.  Y.  629 ;  Fessler's  Appeal.  25 
P.  F.  Smith,  483  ;  Westerman  v.  Means,  2  Jones  (Pa.)  97,  100  ;  MaughUn  v.  Peri-y, 
35  Md.  352,  360  ;  Jones  v.  Noble,  3  Bush.  694  ;  Magoffin  v.  Holt,  1  Duvall,  95  ; 
Estes  V.  Furlong,  59  111.  298,  300  ;  [Coleman  v.  Applegarth,  68  Md.  21  ;  Martin 
V.  Morgan,  87  Cal.  203  ;  Harding  v.  Gibbs,  125  111.  85  ;  Stembridge  v.  Stem- 
bridge,  87  Ky.  91;  Killough  v.  Lee  (Tex.  App.),  21  S.  W.  970;  Durant  v. 
Comegys  (Idaho),  28  Pac.  Rep.  425].  In  Brook  v.  Garrod,  supra,  Lord  Ckanwokth 
said  :  "  If  the  contract  be  that  en  the  payment  of  1,000Z,  at  or  before  a  specified 
day,  a  certain  act  shall  be  done  on  my  part,  I  am  at  a  loss  to  see  why  I  can  prop- 
erly be  called  on  to  do  the  act  if  the  money  be  not  paid  at  the  day  ;  or  why  I 
should  be  compelled  to  perforin  not  my  contract,  but  another  contract  into  which 
I  have  not  entered."  In  Jones  v.  Noble,  supra,  the  parties  made  this  agreement : 
"  This  instrument  in  writing  is  to  certify  that  I  have  this  day  sold  to  I.  R.  Shivell 
a  certain  tract  of  land,  described  in  a  deed  now  in  my  possession,  and  which  is 
to  be  delivered  to  the  said  S.  on  the  payment  of  $3,000  on  the  25th  of  December, 
1863."  Signed  J.  B.  Jones.  S.  died  before  the  day  for  payment,  and  soon  after 
that  day  his  administrator  tendered  the  amount,  and  brought  the  suit  on  the 
next  March  for  a  specific  performance.  Held:  "  The  payment  of  the  price  being 
a  condition  precedent  to  the  transfer  of  the  land,  time  was  of  the  essence  of  the 
contract,  and  the  plaintiff  was  not  entitled  to  a  specific  performance."  In  Kerr  v. 
Purdy,  51  N.  Y.  629,  the  vendor  had  leased  premises  to  plaintiff  for  five  years, 
in  which  lease  was  a  provision  that  the  lessee  might  have  the  privilege  of  buying 
at  any  time  within  the  first  three  years  on  payment  of  all  arrears  of  rent  and 

472 


460  SPECIFIC   I'KliFOliMANCK    OF  COyTKACTS. 

(Sec.  888.  If,  however,  the  offer  or  oi)tioii  ooutaiued  in  the  unilateral 
contract  is  not  made  to  depend  upon  an  acceptance  or  payment  at  or 
before  any  particular  or  specified  day,  but  -simply  calls  for  an  assent 
and  acceptance,  or  for  a  payment,  as  the  case  may  be,  and  is  .silent 
with  respect  to  the  time  within  which  such  acceptance  or  payment 
must  be  made,  then,  so  long  as  the  offer  remains  unnnoked,  it  is  enoui^li 
that  the  acceptance  or  the  |)ayment  be  ma(h>  within  a  reaaortable  ixvae. 
In  this  form  of  the  contract  time  is  therefore  laaterial ;  a  comparatively 
slight  delay  may  «Mid  the  vendee's  right,  but  it  is  not  in  any  true  sense 
of  the  term  eHsetitial.  This  difference  between  the  forms  of  the  uni- 
lateral contract,  will  serve  to  distinguish  between  and  to  reconcile 
some  of  the  decisions  which  appear  on  their  face  to  be  conflicting.  It 
does  not,  however,  reconcile  them  all.  It  cannot  be  denied  that  there 
are  authorities  which  squarely  and  positively  hold,  that  even  when 
the  offer  or  option  is  made  to  depend  upon  payment  of  the  price,  or 
other  act,  being  made  at  or  before  a  specified  day,  time  is  non-essen- 
tial, and  that  a  failure  to  pay  the  money — or  do  the  act — within  the 
appointed  period,  does  not  necessarily  prevent  the  party  from  tender- 
ing his  performance  afterw^ards,  and  enforcing  the  contract  against  the 
vendor. (1) 

$10,000.  Lessee  was  in  arrears,  and  did  not  tender  the  price  within  tlie  three 
years,  although  he  had  made  arrangements  for  pi-ocuring  it.  Held,  that  the  lessee's 
right  depended  upon  payment  within  the  prescribed  time,  and  when  he  suffered 
that  to  elapse,  his  i-ight  was  ended,  and  he  couhi  not  enforce  a  performance  of  the 
defendant's  promise  to  convey.  If  the  unilateral  contract  is  sealed,  and  the  com- 
mon-law effect  of  a  seal  has  not  been  taken  away  or  changed  by  statute,  it  appears 
that  the  promissory  offer  contained  in  the  writing  cannot  be  recalled  before  the 
time  for  acceptance  has  exjjired.  If  such  a  covenant  be  that  the  covenantor  will 
convey,  if  the  covenantee  pays  the  price  on  or  before  a  specified  day,  and  before 
that  day  ai-rives  the  covenantor  conveys  the  land  to  a  thii'd  person,  the  covenantee 
is  not  then  bound  to  tender  the  price,  because  it  would  certainly  be  refused  ;  he 
may  sue  for  a  specific  performance  at  any  time  within  the  prescribed  period,  and 
it  is  enough  if  he  is  ready  antl  willing  to  pay.  Kerr  v.  Purdy,  50  Barb.  124  ; 
Karker  v.  Haverly,  50  Barb.  79  ;  Maughlin  ?>.  Perry,  35  Md.  352  ;  Smoot  v.  Rea, 
19  Md.  40(5 ;  White  v.  Dobson,  17  Graft.  202. 

(1)  See  cases  anfp,  §§  fi5,  67.  Bellingei-  i\  Kitfs,  C  Barb.  273;  Jones  v.  Rob- 
liins,  29  Me.  351  ;  Ewing  v.  Gordon,  49  N.  H.  444  ;  Barnard  v.  Lee.  97  Mass.  92; 
D'Arras  v.  Key.^er,  2  Casey,  249  ;  Perkins  v.  Hasdell,  .^0  111.  21G  ;  [Hanly  v. 
Watferson  (W.  Va.),  19  S.  E.  Rep.  536  ;  Watson  v.  Coast,  35  W.  Va.  4G3  ; 
Schields  v.  Ilorbach  (Nebr.),  44  N.  W.  Rcj).  465].  If  (he  vendor  permits 
the  vendee  to  have  possession  and  to  make  valuable  imjjrovt'ments  on  the 
land  pending  the  time  for  payment,  this  would  constitute  aiiofhcr  and  different 
ground  for  reli(!ving  the  purchaser  from  his  default  in  payment,  and  in  some  of 
these  cases  such  v.-as  the  fact.  In  Jones  r.  Ilobbins,  fsupra,  a  bond  to  convoy  by 
the  vendor  was  conditioned  to  be  void  unless  the  price  was  })aiti  at  Ji  day  named  ; 
but  the  vendee  was  held  entitled  to  ])ay  af'fei-ward.s  and  compel  a  <'onveyance. 
In  D'Arras  v.  Key.^ci-,  snpi-a,  a  lea:»e  for  a  vear  contained  a  i-lau.se  that  the  le.s.see 

473 


TIMK   AS   AFFECTIXG    THE   RIGHT.  461 

Time,  when  made  essential  by  express  stipulation. 

Sec.  389.  2.  In  some  earlier  cases  and  dicto  the  opinion  was  judicially 
given,  that  it  was  impossible  for  the  parties  to  make  time  essential  by 
the  most  positive  stipulation,  unless  there  was  something  in  its  nature 
to  give  it  that  quality  (1)  This  opinion  was  founded  upon  a  notion  that 
there  is  an  identity  in  equity  in  contracts  for  sale  and  in  mortgages ;  that 
as  a  mortgage  cannot,  by  means  of  any  clause,  be  made  not  a  mort- 
gage, so  as  to  cut  off  the  rights  of  the  mortgagee  to  redeem,  so  the 
vendee  could  not  be  deprived  of  his  right  to  pay,  or  the  vendor  of  his 
right  to  complete.  Now  it  cannot  be  denied  that,  to  a  certain  extent 
and  for  some  purposes,  there  is  a  strong  analogy  between  a  mortgage 
and  a  contract  for  sale,  and  this  analogy  has  been  frequently  recog- 
nized by  the  ablest  judges. (2)  But  analogy  is  not  identity,  and  it  is 
now  well  settled  that  the  resemblance  between  the  two  instruments 
is  partial  only,  and  does  not  go  to  the  extent  maintained  by  the 
earlier  theory. (3) 

should  have  the  "  privilege  of  buying  the  premises  for  the  sum  of  152,575,  at  any 
time  within  twelve  months  from  the  date  hereof,"  and  "  upon  payment  of  the 
purchase-money  "  the  lessor  would  give  the  deed  of  conveyance.  The  lessee  ditl 
not  tender  the  pi-ice  until  after  the  expiration  of  two  years.  The  court,  however, 
held  that  the  lessee  acquired  an  equitable  I'iglit  by  the  contract ;  that  time  was 
not  essential,  and  that  he  was  entitled  to  a  specific  performance.  Per  Woodwaud, 
J.  :  "  Mere  default  in  the  payment  of  money  at  a  stipulated  time  admits,  in 
general,  of  compensation,  and  hence  time  of  payment  is  seldom  treated  as  of  the 
essence  of  real  contracts.  Parties  may  make  it  so  by  express  agreement,  but 
there  is  nothing  on  the  face  of  this  contract,  or  in  the  attending  circumstances,  to 
indicate  the  intention  of  those  parties  to  make  time  essential."  In  Barnard  v.  Lee, 
97  Mass.  92,  vendor  covenanted  to  convey  if  the  vendee  should  "on  or  before  the 
1st  of  April"  pay  the  price  ;  vendee  did  not  tender  payment  till  May  25th.  and 
did  not  account  for  the  delay  ;  it  was  held  that  time  was  not  essential,  and  the 
vendee  entitled  to  enforce  perfoi-mance.  In  both  these  two  cases  vendor  suffered 
the  vendee  to  take  possession,  and  to  remain  in  possession  notwithstanding  his 
default  in  payment. 

(1)  Gibson  v.  Patterson,  1  Atk.  12  ;  and  in  Gregson  v.  Riddle,  cited  arguendo, 
by  Mr.  Romilly,  7  Ves.  268,  there  was  a  provision  in  the  contract,  that  it  should 
be  void  and  of  no  effect  unless  the  title  was  pei'fected  at  a  certain  day.  Lord 
Thurlow  held  the  clause  inoperative  ;  that  it  had  often  been  attempted  to  get  rid 
of  agreements  upon  this  ground,  but  never  with  success.  Counsel  for  defendant 
urged  that  the  intention  of  the  parties  was  plain,  and  under  the  ruling  of  the 
chancellor  it  would  be  necessary  to  put  in  a  clause  to  the  effect  that  the  contract 
should  be  void,  if  not  completed  in  time,  notwithstanding  the  decision  of  the 
court.  Lord  Thurlow  replied,  that  this  would  not  help  the  matter  any  ;  if  such 
a  clause  were  inserted,  the  parties  would  be  just  where  they  were  without  it. 

(2)  See  Seton  v.  Slade,  7  Ves.  275,  per  Lord  Eldon  ;  Hipwell  v.  Knight,  1  Y.  & 
C.  Exch.  41.5,  416. 

(3)  See  Rummington  v.  Kelley,  7  Ohio,  432  ;  Kirby  v.  Harrison,  2  Ohio  St.  326, 
333,  per  Thurman,  J. 

47-4 


462  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

Sec.  390.  The  early  doctrine,  as  laid  down  by  Lord  Thdrlow,  was 
doubted  by  Lord  Ei,D()n;(1)  and  wholly  rejected  by  Lord  Kenyon 
who  held  the  contrary. (2)  It  is  now  thorou^dily  established  tliat  th(^ 
intention  of  the  parties  must  govern,  and  il"  the  intcntiitii  clrarly  and 
unequivocally  appears  from  the  contract,  by  means  <tf  some  express 
stipulation,  that  time  shall  be  essential,  then  the  time  of  completion 
or  of  performance,  or  of  complying  witli  th(^  terms,  will  be  regarded 
as  essential  in  eipiity  as  much  as  at  law.  No  particular  form  of  stijMi- 
lation  is  necessary,  but  any  clause  will  have  the  ett'ect  wliich  clearly 
and  absolutely  provides  that  the  contract  is  to  be  void,  if  the  fullill- 
ment  is  not  within  the  prescribed  time. (8) 

(1)  In  Seton  v.  Slade,  7  Ves.  270. 

(2)  Mackreth  v.  Marlar,  1  Cox,  259. 

(3)  In  England  it  seems  to  be  customary  now  to  insert  the  clause,  that  either  in 
respect  to  the  whole  agreement  or  in  respect  to  some  particular  term,  "  time  shall 
be  of  the  essence  of  the  contract."  Hudson  v.  Bartram,  3  Mad.  440;  Lloyd  v. 
Rippingale,  cited  in  1  Y.  &  C.  Ex.  410  ;  Honeyman  v.  Marryatt,  21  Beav.  14,  24  ; 
Baynham  v.  Guy's  Hospital,  3  Ves.  29.5  ;  Boehm  v.  Wood,  1  J.  &  W.  419  ;  Williams 
v.  Edwards,  2  Sim.  78 ;  Hipwell  v.  Knight,  1  Y.  &  C.  Exch.  401,  416  ;  Nokes  v. 
Lord  Kilmorey,  1  DeG.  &  S.  444  ;  Parkin  v.  Thorold,  16  Beav.  59  ;  Gedye  v.  Duke 
of  Montrose,  26  Beav.  45  ;  Hudson  v.  Temple,  29  Beav.  536  ;  Oakden  v.  Pike,  34 
L.  J.  (N.  S.)  Ch.  620  ;  Lloyd  v.  Collet,  4  Bro.  C.  C.  469  ;  Benedict  v.  Lynch,  1 
Johns.  Ch.  370  ;  Doar  v.  Gibbes,  1  Bailey  Ch.  371 ;  Wells  v.  Smith,  2  Edw.  Ch.  78  ; 
7  Paige,  82 ;  Baldwin  v.  Van  Vorst,  2  Stockt.  Ch.  577 ;  Bullock  v.  A.lams,  5  C.  E. 
Green,  371 ;  Barnard  v.  Lee,  97  Mass.  92  ;  Goldsmith  v.  Guild,  10  Allen,  239  ; 
Reed  v.  Breeden,  11  P.  F.  Smith  (61  Penn.  St.).  460  ;  Jackson  v.  Ligon,  3  Leigh, 
161, 187  ;  Willis  v.  Forney,  1  Busbee  Eq.  256  ;  Kirby  v.  Harrison,  2  Ohio  St. 
326,  332  ;  Scott  v.  Fiehls,  7  Ohio  424  ;  Brewer  v.  Connecticut,  9  Ohio,  189  ;  Heck- 
ard  V.  Sayre,  34  111.  142  ;  Stow  v.  Russell,  36  111.  18  ;  Steele  v.  Biggs,  22  III. 
643  ;    Kemp  v.  Humphreys,  13  111.  .573  ;    Smith  v.  Brown,  5  Gilman,  309  ;    Notson 

V  Barrett,  1  Gi-eene  (Iowa),  302  ;  Davjs  v.  Stevens,  3  Iowa,  158  ;  O'Falloii  ■». 
Kennerly,  45  Mo.  124  ;  Grey  v.  Tubbs,  43  Cal.  359 ;  Quinn  v.  Roath,  37  Conn. 
16 ;  Phelps  v.  111.  Cent.  R.  R.,  63  111.  468 ;  Morgan  v.  Bergen,  3  Neb.  209  ;  Snider 

V  Lehnherr,  5  Oreg.  385  ;  Peck  v.  Brighton,  69  111.  200 ;  Kimball  v.  Tooke.  70  III. 
553.  [Carter  v.  Phillips,  144  Me.  100,  102,  per  Morton,  Ch.  J.;  Missouii  River, 
etc.  V.  Brickley,  21  Kan.  275  ;  Phipps  v.  Munson,  50  Conn.  267  ;  Judd  v.  Skidmore 
33  Minn.  140  ;  Mackey  v.  Omer,  31  Minn.  103;  Sowles  v.  Hall,  62  Vt.  247  ;  Cleary 
V.  Folger,  84  Cal.  316  ;  Martin  v.  Morgan,  87  Cal.  203  j  Bennett  v.  Hyde,  92  Cal. 
131.]  In  Benedict  v.  Lynch,  1  Johns.  Ch.  370,  vendor  contracted  in  March,  1810, 
to  sell  a  tract  of  woodland  to  plaintiff,  at  so  much  per  acre,  payable  in  four  yearly 
installments.  It  was  stipulated  that  if  the  payments,  or  any  of  them,  were  not 
punctually  made,  the  contract  should  be  void.  Vendee  took  posse.'«;ion,  cleared 
several  acres,  but  through  misfortune  was  unable  to  make  the  paynients.  Ven- 
dor waited  to  the  end  of  the  second  year,  an<l  then  brought  ejectment  and  recov- 
ered. Vendee,  in  fore  part  of  1814,  tendered  all  the  price,  and  sued  for  a  specific 
performance.  Court  held  that  punctual  payment  was  made  essential  by  the 
clause  of  the  contract.  Also,  that  plaintifTs  delay  of  three  yeai-s  in  tendering 
the  price  was  too  great,  in  the  absence  of  any  ]iroof  that  defendant  hail  accpiiesced 
in  it.  It  should  be  remarked,  that  iilaintifTs  possession  and  improvements 
showed  good  faith  on  his  part,  and  an  intent  not  to  abandon,  and  yet  the  court 
refused  him  any  relief.  (The  question  actually  presented  by  this  cjise  was, 
whether   time   was  material,  and   not    whether  it  was  essential.     The  decisioK 

475 


TIME  AS  AFFECTINa     THE   RIGHT.  463 

Sec.  391,  Some  of  the  cases  cited  in  the  note  below  which  maintain 
the  rule  just  stated,  cannot  easily  be  reconciled  with  other  cases 
heretofore  cited  concerning  relief  ag'ainst  forfeiture  from  a  non-per- 
formance at  the  prescribed  time.  In  several  of  these  cases,  the  court 
has  confounded  two  very  distinct  matters,  namely,  time,  as  essential, 

turned  upon  the  vendee's  great  delay  amounting-  to  laches,  and  not  upon  his 
failure  to  pay  on  the  very  day  appointed.)  As  Ch.  Kent's  opinion  is  very 
instructive  as  a  discussion  of  the  general  doctrine,  I  quote  from  it  freely  :  "There 
was  an  expi-ess  stipulation  in  this  contract  that  if  the  plaintiff  fails  in  either  of 
his  payments,  the  agreement  was  to  be  void.  The  first  question  that  naturally 
presents  itself  is,  whether  time  was  not  here  made  part  of  the  essence  of  the 
contract,  and  whether  the  contract  did  not  become  void  on  the  failure  of  the 
plaintiff  to  make  the  first  payment  in  1811."  Referring  to  the  early  opinion  of 
Lord  Thurlow,  he  proceeds  :  "In  other  and  later  cases  it  has  been  admitted  that 
parties  may  make  the  time  of  the  essence  of  the  agreement,  so  that  if  thei-e  be  a 
default  at  the  day  without  any  just  excuse,  and  without  any  waiver  afterwards, 
the  court  will  not  interfere  to  help  the  party  in  default.  The  case  is  not  analo- 
gous to  that  of  a  mortgage,  where  the  only  object  of  the  security  is  the  payment 
of  the  money,  and  not  the  transfer  of  the  estate  ;  and  it  seems  to  be  conducive  to 
the  preservation  of  good  faith  and  the  rights  of  the  parties,  that  if  a  contract  of 
-sale  is  expressly  declared  to  be  vacated  on  non-performance  by  a  given  day,  that 
the  courts  should  not  interfere  as  of  course  to  annul  such  a  pi-ovision.  The 
opinion  of  Lord  Loughborough  in  Lloyd  v.  CoUett,  4  Bro.  C.  C.  469  ;  4  Ves.  589,  n. 
contains  a  strong  and  decisive  argument  on  this  point.  He  observes:  'There  is 
nothing  of  more  importance  than  that  the  ordinary  contracts  between  man  and 
man,  which  are  so  necessary  in  their  intercourse  with  each  other,  should  be 
certain  and  fixed,  and  that  it  should  certainly  be  known  when  a  man  is  bound 
and  when  he  is  not.  Thei-e  is  a  difficulty  to  comprehend  how  the  essentials  of  a 
contract  should  be  different  in  equity  and  at  law.  It  is  one  thing  to  say  that  time 
is  so  essential,  that,  in  no  case  in  which  the  day  has  been  by  any  means  suffered 
to  elapse,  the  court  would  relieve  against  it,  and  decree  performance.  The  con- 
duct of  the  parties,  inevitable  accident,  etc.,  might  induce  the  court  to  relieve. 
But  it  is  a  diffei'ent  thing  to  say  that  the  appointment  of  a  day  is  to  have  no 
effect  at  all ;  and  that  it  is  not  in  the  power  of  the  parties  to  contract  that,  if  the 
agreement  is  not  executed  at  a  particular  time,  they  shall  be  at  liberty  to  rescind 
it.  In  most  of  the  cases  thei-e  have  been  steps  taken.  *  *  *  I  want  a  case  to 
prove  that  where  nothing  has  been  done  by  the  parties,  this  court  will  hold,  in  a 
contract  of  buying  and  selling,  a  rule  that  the  time  is  not  an  essential  part  of  the 
contract.  Here  no  steps  had  been  taken  from  the  day  of  the  sale  for  six  months 
after  the  expiration  of  the  time  at  which  the  contract  was  to  be  completed.  If  a 
given  default  will  not  do,  what  length  of  time  will  do  ?  An  equity  arising  out  of 
one's  own  neglect !  it  is  a  singular  head  of  equity  ! '  It  would  be  impossible  for 
me  to  add  to  the  perspecuity  and  energy  of  this  reasoning ;  and  the  Lord  Chan- 
cellor in  that  case  held,  that  as  the  vendor  had  omitted  to  complete  a  purchase 
for  six  months,  being  all  that  time  in  default,  he  was  considered  as  having  aban- 
doned the  contract ;  and  he  said  there  was  no  case  where  no  step  had  been  taken 
by  the  one  party,  and  the  other  had  immediately,  when  the  time  had  elapsed, 
refused  to  perform  the  agreement,  that  a  performance  had  been  decreed.  It  may 
then  be  laid  down  as  an  acknowledged  rule  in  courts  of  equity,  that  when  the 
party  who  applies  for  a  sjiecifie  performance  has  omitted  to  execute  his  part  of 
47G 


4(34  Sl'KCIFIC   PKRhOmiAyCE    OF  COM'liACTS. 

and  time,  as  material  to  the  contract.  The  question  ])re.sente(l  by  the 
facts  and  discussed  by  the  opinions  is  really  whetlier  time  was  laaicrial, 
so  that  a  delay  would  prevent  the  defaulting  party  from  enforcing 
the  agreement.  Where  a  provision  expressly  making  time  essential 
in  respect  to  the  payment  of  the  price  is  inserted  as  a  penaltij,  it  will 

the  contract  by  the  time  uppninteil  for  that  parp(6se,  without  being-  able  to  ju<!sig-ii 
anysutiicient  justitication  or  excuse  for  his  delay,  and  where  there  is  nothing  in  the 
acts  or  conduct  of  the  other  party  that  anioinits  to  an  acquiescence  in  that  dehij-, 
tlie  court  will  not  compel  a  specific  jierforniance.  The  rule  appears  to  be  founded 
In  the  soundest  principles  of  policy  and  justice.  Its  tendency  is  to  uphold  g-ood 
faith  and  punctuality  in  dealing-.  The  notion  that  seems  too  much  to  pr«!vail 
(and  of  which  the  facts  of  the  present  case  furnish  an  example),  that  a  party  may  l)e 
utterly  regardless  of  his  stipulated  payments,  and  that  a  court  of  chancery  will, 
almost  at  any  time,  relieve  him  from  the  penalty  of  his  gross  negligence,  is  very 
injurious  to  good  morals,  to  a  lively  sense  of  obligation,  to  the  sanctity  of  con- 
tracts, and  to  the  character  of  this  coiu't.  It  would  be  against  all  my  impressions 
of  the  principles  of  ecjuity  io  help  those  who  show  no  equitable  title  to  relief."  In 
Wells  V.  Smith,  7  Paige,  82,  the  contract  was  for  the  sale  of  a  city  lot,  and  con- 
tained a  clause  that,  on  oi"  before  a  particular  day,  the  vendee  should  build  a 
house  on  the  lot,  or  else  should,  on  that  day,  pay  $1,000  as  the  first  installment  of 
the  jn-ice  ;  also,  that  if  the  vendee  neglected  or  failed  to  perform  any  of  the  cove- 
nants therein  contained  at  the  times  limited,  all  his  right  or  interest  in  the  prem- 
ses,  whether  at  law  or  in  equity,  should  cease.  The  vendee  did  not  build  the 
house  nor  tender  the  price  within  the  time  prescribed,  and  on  his  suit  foi-  a  specific 
performance,  it  was  held  that  he  could  not  recover.  As  this  case  is  often  i-eferred 
to,  I  quote  at  some  length  from  the  opinion  of  Chancellor  Walworth  :  "As  to  the 
power  of  the  vendor  or  of  the  purchaser  to  make  the  performance  of  a  condition 
precedent  essential  to  the  vesting  of  a  legal  or  e(]uitable  right  in  the  adverse 
party  to  a  specific  perfoi-mance,  I  have  no  doubt,  though  this  cou)-t  may,  perhaps, 
relieve  against  a  forfeiture  where  it  would  be  unconscientious  to  insist  upon  a 
strict  and  literal  compliance.  Thus,  if  a  vendoi-,  after  he  had  i-eceived  the  greater 
portion  of  the  purchase-money,  should  attempt  to  enforce  a  forfeiture  of  the 
money  paid,  under  a  stipulation  that  he  might  keep  the  whole  amount  thus 
received  and  the  premises  also,  if  the  last  payment  was  not  made  at  the  day,  I 
am  not  prepared  to  say  that  this  court  would  not  interfere  to  compel  him  either 
to  accept  the  last  payment  and  convey  the  pi-emises,  or  to  restore  the  purchase- 
money  already  paid,  after  deducting  a  i-easonable  amount  for  the  use  of  the 
premises  in  the  mean  time.  *  *  *  Although,  in  theoiy,  the  interest  is  supposed 
to  be  a  fair  equivalent  for  the  non-payment  of  money  at  the  time  agreed  ujx)!!,  we 
all  know  that  in  jioint  of  fact,  the  person  to  whom  it  is  due  freijuently  sustains 
great  losses  in  consequence  of  the  disappointment,  which  the  legal  rate  of  iutei-est 
cannot  compensate.  On  the  other  hand,  it  fi-equently  happens  that  the])eifecting 
of  the  title,  and  the  delivery  of  the  possession  of  the  premises  at  the  time  contem- 
plated by  the  purchaser,  ai-e  of  essential  benefit  to  him,  which  cannot  be  compen- 
sated by  damages  which  are  ascertainable  by  the  ordinary  rules  foi-  (com- 
puting damages.  It  would,  therefore,  not  only  be  unreasonable,  but  entii-ely 
unjust,  for  any  court  to  hold  that  parties,  in  making  executory  contracts  for  the 
sale  or  purchase  of  real  estate,  should  not  be  jjermitted  to  make  the  time  of  per- 
formance an  essential  and  liinding  jiai-t  of  the  contract  in  equity  as  well  as  at  law, 
where,  as  in  this  case,  the  othei-  party  was  fully  apprised  of  the  intention  to  insist 

477 


TIME  AS  AFFECTING    THE  RIGHT.  465 

"be  disregarded  by  a  court  oi"  equity,  and  the  vendee,  although  in 
default,  will  be  relieved  from  the  effect  of  the  clause  and  from  the 
forfeiture. (1) 

Sec.  392.  In  order  that  time  may  be  essential  from  the  express  pro- 
vision of  the  agreement,  the  intent  to  make  it  so  must  be  most 

upon  a  strict  perforuiaiice  at  the  day."  In  Davi.^  v.  Stevens,  3  Iowa,  158,  a  con- 
tract for  sale  of  land  was  "on  condition  that  he  [the  vendee]  would  pay  promptly, 
time  being- of  the  essence  of  the  contract,"  and  it  was  held  that  his  failure  to  pay 
on  the  prescribod  day  cut  off  his  right  to  a  specitic  performance  against  the  ven- 
dor. The  court  also  held  that  the  vendee  was  bound  to  tender  the  price  on  the 
day  named,  without  waiting  for  a  demand  by  the  vendor,  and  that  the  vendor 
was  entitled  to  set  up  the  purchasei-'s  non-payment  as  a  defense,  although  he  had 
not  tendered  a  deed  or  demanded  payment  of  the  price.  In  Scott  v.  Fields,  7 
Ohio,  425,  vendor  contracted  to  sell  the  land  to  the  vendee  for  $831,  $100  down,  $200 
on  March  IB,  1835,  ;r200  on  June  13,  1835,  and  the  balance  on  January  13,  1836. 
There  was  a  provision  that  if  vendee  failed  in  making  any  of  these  payments  in 
the  above  manner,  he  was  to  forfeit  the  first  installment,  and  the  contract  was 
to  be  void.  He  went  into  possession  and  paid  the  first  and  second  installments. 
He  defaulted  with  the  third  installment,  but  afterwards  tendered  it,  but  the 
vendor  i-efused  to  accept  it,  and  said  he  was  ready  to  refund  the  second  one. 
At  the  time  when  the  last  installment  became  due,  the  vendee  tendered  all  that 
was  then  due,  third  and  fourth,  with  interest,  which  was  refused.  On  a  suit  for 
a  specific  pei-formance,  held  that  "  the  parties  had  made  time  of  the  essence  of  the 
contract,  and  that  the  plaintiff  had  violated  the  agreement  by  failing  to  pay  the 
third  installment."  The  bill  was  therefore  dismissed,  but  with  a  provision  for 
refunding  the  second  installment.  In  Bullock  v.  Adams,  5  C.  E.  Green,  371,  the 
Chancellor  of  N.  J.  said:  "Courts  of  equity  do  not  in  general  consider  the  time 
of  performance  as  of  the  essence  of  a  contract  for  the  sale  of  lands,  but  hold  that 
it  may  become  of  the  essence  by  being  expressly  made  so  by  the  contract  itself 
[citing  authority] ;  or  by  notice  from  the  other  pai-ty,  insisting  ujaon  performance 
at  the  time  fixed,  or  from  the  subject-matter  of  the  contract  and  its  surroundings," 
citing  McKay  v.  Carrington,  1  McLean,  50  ;  Holt  v.  Rogers,  8  Pet.  420  ;  Levi  v. 
Lindo,  3  Meriv.  81  ;  Coslake  i\  Till,  1  Russ.  376  ;  Young's  Adm's  v.  Rathbone,  1 
C.  E.  Green,  224.  In  O'Fallon  v.  Kennerly,  45  Mo.  127,  it  was  said  by  the  coui"t ; 
*'  Relief  may  be  given  against  a  forfeiture  arising  from  the  breach  of  a  stipulation 
that  the  contract  shall  be  void  if  the  money  be  not  paid  at  the  time  prescribed  ; 
but  that  it  will  not  be  accorded  except  on  some  distinct  and  sufficient  ground — 
as,  for  instance,  that  the  purchaser  went  into  possession  and  made  valuable 
improvements,  or  paid  a  considerable  portion  of  the  price,  or  that  the  default  was 
occasioned  by  the  act  of  the  vendor,  or  that  he  waived  it  by  receiving  part  of 
the  purchase-money,  or  where  other  circumstances  render  it  inequitable  to  enforce 
the  forfeiture."  [Where  time  is  not  of  the  essence  of  the  contract,  it  cannot  be 
shown  by  parol  evidence  that  it  was  understood  at  the  execution  of  the  contract 
that  time  was  to  be  essential.     Austin  v.  Walks,  30  Minn.  335.] 

(1)  In  re  Dagenham  Dock  Co.,  Ex  parte  Hulse,  L.  R.  8  Ch.  1022.  A  company 
agreed  with  the  owner  to  purchase  a  lot  for  4,000Z.  2,000L  to  be  paid  down  and 
2,000Z.  at  a  future  day  named,  with  a  provision  that  if  the  whole  2,000Z.  and 
interest  was  not  paid  on  that  day,  in  which  respect  time  was  to  be  of  the  essence 
of  the  contract,  the  vendor  might  retake  the  land  without  repaying  any  part  of 
the  purchase-money  already  paid  by  the  purchaser.  Held,  that  this  provision 
was  a  penalty,  and  the  company  in  default  should  be  relieved  on  payment  of  the 
balance  of  the  purchase-price  and  interest. 
478        30 


4(56  SPECIFIC   PRRFORMANCK    OF   COyTRACTS. 

clearly,  unequivocally,  and  unmistakably  shoTvn  by  the  stipu- 
lation. The  i)resci'ibiiig-  a  day  at  or  hL-fore  whirh,  or  a  peiiixl  within 
which,  an  act  must  be  done,  even  with  a  stii)iihiti()n  that  it  shall  be 
done  at  or  before  the  day  named,  or  within  tlie  period  mentioned, 
does  not  render  the  time  essential  witli  respect  to  sucli  act.  It  lias 
been  so  held  with  reference  to  a  stipulatipn  for  the  payment  of  the 
price,  or  execution  and  delivery  of  the  deed;(l)  and  to  a  stipulation 
in  the  contract  that  the  abstract  of  title  should  be  delivered  on  or 
before  a  particular  day  named,  although  the  purchaser  upon  a  fail- 
ure to  deliver  on  that  day  immediately  refused  to  go  on  with  the 
contract.(2) 

(1)  Hearne  y.  Tenant,  13  Ves.  287;  Parkinv.Thorol(l,16  Beav.  59  ;  2Sim.  (N.S.) 
1 ;  Att'y-Gen.  v.  Purmoit,  5  Paige  620 ;  Wells  v.  Wells,  3  Ii-ed.  Eq.  596  ;  Runnels 
V.  Jackson.  1  How.  (Miss.)  358  ;  Hoyt  v.  Kimball,  49  N.  II.  322  ;  Barnard  v.  Lee, 
97  Mass.  92  ;  Quinn  v.  Roach,  37  Conn.  17  ;  Viele  v.  Troy  &  Boston  R.  R.,  21  Barb, 
381  ;  Dufly  v.  O'Donovan,  4G  N.  Y.  223;  HubbelU).  Van  Schoening-,  49  N.  Y.  326; 
D'  Arras  v.  Keyser,  2  Casey,  249  ;  Reniing-ton  v.  Irwin,  2  Harris,  143  ;  Jackson  v. 
Ligon,  3  Leigh,  161,  187  ;  Morg-aa  v.  Herrick,  21  111.  481  ;  Hall  v.  Delaitlaine,  5 
Wise.  206  ;  Matthews  v.  Gillis,  1  Clark  (Iowa),  242 ;  Brashier  v.  Gratz,  6  Wheat. 
528,  533.  [Ballard  v.  Ballard,  25  W.  Va.  470.]  In  Remington  (tJ.  Irwin,  supra. 
Coulter,  J  ,  said  :  "  I  am  unable  to  preceive  that  time  is  made  essential  by  the 
terms  of  the  contract.  The  first  installment  was,  it  is  true,  to  he  paiil  by  the 
vendee  on  the  l.st  of  October,  1848,  when  a  title  free  of  incumbrance  was  to  be 
conveyed  by  the  vendor.  This,  however,  is  nothing-  imyre  than  a  naked  covenant  to 
pay  money  at  a  particular  day,  which  I  apprehend  has  never  been  held  to  make  time 
of  the  essence  of  the  contract,  for  the  plain  reason  that  it  admits  of  adequate  com- 
pensation ascertained  by  law  in  the  shape  of  interest.  De  Camp  v.  Feay,  5  S.  &  R. 
328."  But  see  Grey  v.  Tubbs,  43  Cal.  359,  and  other  cases  cited,  ante,  §§  335,  336, 
380,  390  ;  [also,  Cleary  v.  Folg-er,  84  Cal.  316].  The  doctrine  in  regard  to  the  stipu- 
lations concerning  time,  which  render  it  essential,  as  settled  by  the  weight  of  auth- 
ority in  accordance  with  the  equitable  principle  of  relieving  against  forfeitures,  was 
admirably  summed  up  by  the  court  of  Connecticut,  in  the  case  of  Quinn  v.  Roath, 
37  Conn.  16,  and  this  grand  principle  relating  to  forfeitures  has  been  evidently 
lost  sight  of  in  some  of  the  cases  heretofore  cited,  in  which  the  decision  has  been 
placed  upon  the  very  letter  of  the  contract.  The  doctrine  that  a  court  of  equity 
''  will  never  make  a  new  contract  for  the  parties  "  if  genei-ally  applied  in  the  man- 
ner in  which  it  has  sometimes  been,  would  at  one  blow  abolish  a  large  jjart  of  the 
«quity  jurisdiction  concerning  forfeitures  and  penalties.  The  court  held  in  the 
case  of  Quinn  v.  Roath,  that  every  agreement  as  to  time  isnote.«sential.  and  every 
failure  of  the  plaintiff  in  j-espect  thoi-eto,  will  not  defeat  his  right  to  a  sp(H;itic  per- 
foi-mance.  In  ordei-  that  the  stipidation  may  be  of  such  an  essential  nature  that 
its  non-fulfillment  will  be  a  defense,  it  must  either  be  in  its  terms  oi-  l)y  its  intrinsic 
character  a  condition  precedent  to  the  plaintiff's  enfoi-cement  of  the  conti-act ;  or 
it  must  be  such  as  on  its  non-fulfillment,  without  reasonable  excuse,  will  in  terms 
render  the  contract  void  ;  or  it  must,  in  .some  other  maimer — through  fraud,  mis- 
take, surprise,  bail  faith,  imreasonable  delay,  gross  neglect,  oi-  oth(M-  plain  uncon- 
scientiousness — make  it  inequitable  that  the  plaintiff  should  enforce  the  contract ; 
■and  see  McClartey  v.  Gokey,  31  Iowa  505. 

(2)  Roberts  v.  Berry,  16  Beav.  31  ;  3  DeG   M.  &  G.  284,  292. 

479 


TIME  AS   AFFECTING    THE   RIGHT.  467 

Sec.  393.  Returning  to  the  stipulations  which  make  the  time  of 
payment  essential,  if  the  clause  be  not  absolute  that  the  contract 
shall  be  ipso  facto  void  upon  a  default  in  payment  at  the  time,  but  itH 
object  and  its  language  are  to  give  the  vendor  his  election  and  power 
to  put  an  end  to  the  agreement  upon  the  vendee's  failure  in  paying 
at  the  appointed  day,  then  the  vendor,  if  he  intends  to  avail  himself 
of  the  provision,  must  give  the  purchaser  a  timely  and  reasonable 
notice  of  his  intention  to  avoid  the  contract,  or  must  do  some  unequivo- 
cal act  which  unmistakably  shows  that  intention,  for  the  vendor  cannot 
treat  the  default  alone  as  terminating  the  agreement. (1)  American 
cases  hold  that  the  vendor  must  also,  -when  he  e'ects  to  rescind  the 
contract  on  this  account,  repay  or  tender  the  purchase-money  received, 
and  return  the  collateral  securities  giv.en  to  him  by  the  vendee. (2) 
A  formal  notice  by  the  vendor  may  not,  perhaps,  be  always  neces- 
sary, for  it  is  declared,  in  some  decisions,  that  any  act  of  the  vendor, 
of  which  the  purchaser  is  or  must,  in  the  natuie  of  things,  be 
informed — showing  clearly  and  unequivocally  that  the  vendor  has 
elected  to  rescind  the  agreement,  or  to  treat  it  as  at  an  end — will 

(1)  Young  V.  Daniels,  2  Iowa,  126  ;  Armstrong'  v.  Pierson,  5  Iowa,  317  ;  [O'Connor 
V.  Hughes,  35  Minn.  44G ;  Coles  v.  Shepard,  30  Minn.  446  ;  Gray  v.  Suspension 
Car  Truck  Co.,  127  111.  187 J. 

(2)  White  V.  Butcher,  6  Jones  Eq.  231  ;  Converse  v.  Blumrich,  14  Mich.  109, 115  ; 
Morris  v.  Hoyt,  11  Mich.  9  ;  Young  «.  Daniels,  2  Iowa,  126  ;  Armstrong  v.  Pierson, 
5  Iowa,  317  ;  Murphy  v.  Lockwood,  21  111.  611,  620  :  Hechard  v.  Sayre,  34  111. 
142  ;  Chrisman  v.  Miller,  21  111.  236  ;  Thompson  v.  Bruen,  46  111.  125  ;  Staley  v. 
Murphy,  47  111.  244,  per  Lawrence,  J.  :  "There  are,  undoubtedly,  cases  where 
the  purchaser  has  been  guilty  of  gross  laches,  in  which  the  vendor  would  be 
justified  in  re-selling  to  a  third  person,  without  first  tendering  to  the  first  pur- 
chaser the  money  paid,  either  holding  it  subject  to  his  order,  or  until  the  equities 
between  them,  growing  out  of  the  contract  and  its  violation  by  the  purchaser,  can 
be  adjusted.  (Thompson  v.  Bi-uen,  46  111.  125.)  But  while  fbe  money  paid  need 
not  be  returned  in  every  case,  as  a  preliminary  to  the  i-escission  of  a  contract  for 
non-performance  by  the  vendee,  the  unpaid  negotiable  notes  must  always  be  either 
returned  or  canceled,  so  that  they  cannot  be  negotiated,  and  their  payment  be 
enforced.  As  was  said  by  the  court  in  Chrisman  v.  Miller,  21  111.  236,  the  vendor 
who  rescinds  must  place  himself  in  a  position  where  he  cannot  enforce  the  contract 
as  against  the  vendee.  He  cannot  be  permitted  to  retain  the  notes  with  the  power 
of  negotiating  them  to  innocent  purchasers,  and  at  the  same  time  insist  that  the 
contract  is  terminated,  and  the  ]-ights  of  the  vendee  extinguished."  In  Phelps  v. 
Illinois  Central  R.  R.,  63  111.  468,  the  contract  was  peculiar,  containing  this  stipu- 
lation :  "  In  case  the  party  of  the  second  part  shall  fail  to  make  the  aforesaid 
payment  iiunctually,  this  contract  shall  become  utterly  null  and  void,  and  all 
right  under  it  shall  cease,  and  the  i)remises  shall  revert  to  the  party  of  the  first 
part  without  any  re-entry  or  declaration  of  forfeiture."  The  court  held,  purport- 
ing to  follow  the  opinion  of  Walworth,  Ch.,  in  Wells  v.  Smith,  that  the  vendor 
could  treat  the  contract  as  ended,  on  default  in  payment,  without  notifying  the 
vendee  or  returning  the  notes  given  for  the  price.  This  is  certainly  a  harsh  deci- 
sion, and  little  in  accordance  with  the  true  spirit  of  equity 

480 


468  SFKCIFIC     I'KliFOKMAyCt:    OF  CONTRACTS. 

operate  the  same  as  and  take  the  [)lace  of  a  notice  of  muIi  intent ioii  to 
the  vendee;  but  the  act,  in  orchu-  to  produce  tlii.s  etloct,  must  be 
wholly  inconsistent  witli  a  continuance  of  the  contract. (1) 

Sec.  8U4;.  Wherever  time  is  made  essential  either  by  the  nature  of  the 
subject-matter  and  object  of  the  agreement,  or  by  express  stipulation, 
or  by  a  subsequent  notice  given  by  one  of  the  parties  to  tin;  other,  the 
party  in  whose  favor  this  quality  exists — that  is,  the  one  who  is  entitled 
to  insist  upon  a  punctual  performance  by  the  other  or  else  that,  the 
agreement  be  ended — may  waive  his  riglit  and  the  benefit  of  any 
objection  which  he  might  raise  to  a  performance  after  the  prescribed 
time,  either  expressly  or  by  his  conduct;  and  his  conduct  will  oi)erat.e 
as  a  waiver  when  it  is  consistent  only  with  a  purpose  on  liis  part 
to  regard  tlie  contract  as  still  subsisting,  and  not  ended  by  the  other 
party's  default. (2) 

Time  made  essential  by  a  subsequent  notice  by  one  of  the 
parties. 

Sec.  395.  8.  As  the  doctrine  that  time  is  not  essential  in  the  performance 
of  a  contract  may  sometimes  work  injustice,  and  be  used  as  the  excuse 

(1)  The  court  of  Illinois  has  gone  so  far  as  to  hold  that  a  sale  of  the  land  to  a 
third  person,  although  not  communicated  to  the  vendee,  is  such  an  act.  Fitch  %\ 
Boyd,  55  111.  307,  309  ;  Chrisman  v.  Miller,  21  111.  227,  236.  A  sale  made  to  a 
third  person,  if  the  vendee  is  inuiiediately  informed  of  the  fact,  might  satisfy  all 
the  conditions  of  the  rule,  and  would,  I  think,  be  an  act  in  the  highest  degree, 
inconsistent  with  the  continuance  of  the  former  contract,  and  so  might  take  the 
place  of  a  notice  ;  but  I  cannot  think  that  a  sale  made  privately,  without  the 
vendee's  knowledge,  ought  to  have  the  effect  of  terminating  the  contract.  In 
other  words,  unless  the  vendee  delays  after  being  informed  of  the  sale,  his  rights 
should  not,  in  my  opinion,  be  regarded  as  necessarily  cut  off  by  the  sale.  In 
regard  to  the  surrender  of  securities  by  the  vendor,  upon  his  electing  to  rescind, 
the  Ilhnois  courts  hav^e  held,  that  he  is  not  bound  to  surrender  or  cancel  the 
negotiable  notes  given  for  the  jirice,  if  the  rescission  is  made  after  they  have 
matured  and  fallen  due  ;  because  after  that  time  the  vendee  is  in  no  danger  of 
being  m;.de  lialile  upon  them  in  the  hands  of  a  bona  fide  transferi-ce.  If  they 
should  l)e  ti-ansferred  and  sued  upon  by  the  indorsee,  the  vendee  (makei-)  would 
always  have  a  good  defense  on  them,  viz.,  that  the  contract  having  been  rescinded 
by  their  original  payee,  their  considei-ation  had  wholly  failed.  Phelps  v.  Illinois 
Cent.  R.  R.,  63  111.  468,  476  ;  Fitch  v.  Boyd,  55  111.  307. 

(2)  In  Seton  v.  Slade,  7  Ves.  265,  the  vendee  had  notified  the  vendor  that  the 
title  must  be  completed  at  a  certain  day,  or  he  should  treat  the  contract  as  ended  ; 
his  acceptance  of  the  abstract,  without  objection,  so  late  that  the  title  could  not 
be  perfected  by  the  day,  was  held  a  waiver.  Boehm  v.  Wood,  1  J.  &  W.  420  ; 
Levy  V.  Lindo,  3  Meriv.  81  ;  Huntei-ii.  Daniel,  4  Hare,  420  ;  Parkin  o.  Thorold,  16 
Beav.  59,  60,  71  ;  Wells  v.  Maxwell,  32  Beav.  408  ;  Webb  v.  Hughe.s,  L.  R.  10  Va{. 
281  ;  [Van  Vranken  v.  Cellar  Rajiids,  etc.,  R.  R.,  55  Iowa,  135  (waiver  by  express 
agreement)  ;  Thayer  v.  Star  Mining  Co.,  105  111.  540  (by  acquiescence)  ;  Keypoi-t, 
etc.,  Co.  V.  Lorillard  (N.  J.),  19  Atl.  Rep.  38  (option  extended  by  negotiation)  ; 
Robinson  v.  Trufant,  97  Mich.  410;  Izard  v.  Kimmell  (Nebr.),  41  N.  W  Rej.. 
1068  ;  Wilson  v.  Emig  (Kan.),  24  Pac.  Rep.  80  ;  Lancaster  V-  Roberts  (III.),  33  N. 
E.  Rep.  27.]  In  Upperton  v.  Nickolson,  I^.  R.  6  Ch.  436,  time  was  madti  essential 
in  respect  to  the  stipulation  as  to  the  vendee's  objecting  to  the  title ;  held,  that 
vendor's  delay  in  delivering  the  title-papers — the  abstract — excused  the  vendee's 
delay  in  making  the  objections. 

481 


TTMI<:   AS   AFFECTIXG    THE   EIGHT.  469 

fov  uiiwarrautable  laclies,  the  following-  rule  was  introduced  at  a  com- 
paratively late  period,  and  is  now  liriu'.y  settled,  which  prevents  the 
doctrine  from  being  abused  by  the  neglect  or  willfulness  of  either 
})arty.  If  either  tlie  vendor  or  the  vendee  has  improperly  and  nnrea- 
sonably  delayed  in  complying  with  the  terms  of  the  agreement  on 
his  side,  the  other  party  may,  by  notice,  fix  upon  and  assign  a  reason- 
able time  for  completing  the  contract,  and  may  call  ni)on  the  default- 
ing party  to  do  the  acts  to  be  done  by  him,  or  any  particular  act 
within  this  period.  The  time  thus  allotted  then  becomes  essential, 
and  if  the  party  in  default  fails  to  perform  before  it  has  elapsed,  the 
court  will  not  aid  him  in  enforcing  the  contract,  but  will  leave  him  to 
his  legal  remedy.(l) 

Sec.  396.  The  notice  cannot  be  an  arbitrary  and  sudden  termina- 
tion of  the  transaction  ;  it  cannot  put  an  immediate  end  to  a  pending 
dispute  or  negotiation  as  to  the  title  ;  it  must  allow  a  reasonable 
length  of  time  for  the  other  party  to  perform,  and  if  it  fails  in  any 
of  these  respects,  it  may  be  disregarded,  and  will  produce  no  effect 
upon  the  equitable  remedial  rights  of  the  party  to  whom  it  is  given. (2) 
The  nature  and  object  of  the  contract,  the  circumstances  of  the  case, 
and  the  previous  conduct  of  the  parties,  are  important,  and,  indeed, 
controlling  elements  in  determining  the  reasonableness  of  the  notice. (B) 
The  notice,  also,  to  be  effectual  in  making  the  time  allotted  an  essen- 

(1)  Reynolds  v.  Nelson,  6  Mad.  18 ;  Taylor  v.  Brown,  2  Beav.  180  ;  Benson  v. 
Lamb,  9  Beav.  .502  ;  Nokes  v.  Lord  Kilmorey,  1  DeG.  &  Sni.  444  ;  King-  v.  Wil- 
son, 6  Beav.  126  ;  Heaphy  v.  Hill,  2  S.  &  S.  29  ;  Watson  v.  Reid,  1  Russ.  &  My. 
236  ;  Walker  v.  JeflVeys,  1  Hare,  341 ;  Pegg-  v.  Wisdeu,  16  Beav.  239  ;  Parkin  v. 
Thorold,  16  Beav.  59  ;  Macbryde  v.  Weeks,  22  Beav.  533  ;  Goi-don  v.  Mahony,  13 
Ir.  Eq.  404 ;  Morgan  v.  Gurley,  1  Ir.  Ch.  482,  495  ;  Eads  v.  Williams,  4  DeG.  M. 

6  G.  674 ;  Nott  v.  Riccard,  22  Beav.  307  ;  Rogers  v.  Sanders,  16  Me.  92 ;  Wis- 
wall  u  McGowan,  1  Hoff.  Ch.  125 ;  Hatch  v.  Cobb,  4  Johns.  Ch.  559  ;  Jackson  v. 
Ligon,  3  Leigh,  161 ;  Thompson  v.  Dulles,  5  Rich.  Eq.  370  ;  Rummington  v.  Kelley, 

7  Ohio,  432  ;  Smith  v.  La-wrence,  15  Mich.  499  ;  Bi-ashier  v.  Gratz,  6  Wheat.  528  ; 
Reed  V.  Breeden,  61  Pa.  St.  460. 

(2)  Thus,  where  a  negotiation  was  pending  concerning  the  vendee's  objections 
to  the  vendor's  title,  a  notice  by  the  vendee  calling  upon  the  vendor  to  complete, 
within  one  month,  or  the  contract  would  he  ended,  was  held  unreasonable.  Wells 
V.  Maxwell,  32  Beav.  408  ;  11  W.  R.  842.  In  another  case  six  weeks  was  held 
unreasonably  short  for  the  vendee  to  complete.  Pegg  v.  Wisden,  16  Beav.  239  : 
and  fourteen  days  an  unreasonable  time  for  the  vendors  to  perfect  title  and  com- 
plete. Parkin  v.  Thorold,  16  Beav.  59.  See.  also,  Taylor  v.  Bi-own,  2  Beav.  180 ; 
King  V.  Wilson,  6  Beav.  124  ;  McMun-ay  v.  Spicei-.  L.  R.  5  Eq.  .'27  :  Webb  v. 
Hughes,  L.  R.  10  Eq.  286  ;  Tiernan  v.  Roland,  3  Harris,  429,  431  ;  Wiswall  v. 
McGowan,  1  Hoff.  Ch.  125,  139  ;  [See,  Oakey  v.  Cook,  41  N.  J.  Eq,  350  ;  Quinn?). 
Olson,  34  Minn.  422  ;  Hatten  v.  Russell,  38  Ch.  Div.  334  ;  Chabot  v.  Winter  Park 
Co.,  (Fla  )  15  So.  Rep.  756  (where  the  act  required  by  the  notice  to  be  performed 
was  simply  the  payment  of  a  sum  of  money,  forty  days  held  reasonable);  Miller 
V.  Rice,  133  111.  315  (unreasonableness  of  the  notice  cannot  be  urged,  if  the  party 
on  whom  it  was  served  assented  at  the  time).] 

(3)  As  examples,  in  Nott  v.  Riccard,  22  Beav.  307,  it  was  said  that  where  the 
vendor  had  jireviously  refused  to  remove  an  objection  to  his  title,  a  notice  might  be 
reasonable,  which  if  givsn  in  the  first  instance,  calling  upon  him  to  remove,  would 

482 


470  SFKCIFIV   PhlitOh'MA.WI':    OF   CO.XTIx'ACTS. 

tial  element  of  the  pciloniiaiico,  must  bo  express,  clear,  distiiirt  and 
unequivocal. (1) 

yEC.  397.  After  time  lias  been  thus  made  an  essential  element  of 
the  contract,  by  a  reasonable  notice  given  during  the  negotiation  ctm- 
cerning  its  performance,  the  notice  and  its  effect  may  be  'waived  by 
the  conduct  of  the  party  giving  it;  and  i/ the  time  is  once  allowed  to 
pass,  and  the  parties  still  go  on  negotiating  for  the  completion  of  the 
purchase,  this  conduct  amounts  to  a  waiver,  and  time  is  then  no  longer 
essential. (2)  When  the  fact  of  notice  having  been  given  is  set  up  in 
defense,  it  seems  a  verbal  notice  is  sufficient ;  but  when  set  up  by  the 
plaintifl',  that  it  must  be  in  writing. (3) 

Sec.  398.  "Whenever  time  is  an  essential  element  of  the  contract, 
either  being  originally  so,  or  being  engrafted  upon  the  agreement  by 
means  of  a  notice,  and  the  purchaser  does  not  receive  possession  of  the 
land  at  the  time  stipulated  in  the  contract  for  its  delivery,  but  after- 
wards obtains  a  decree  for  specific  performance,  he  is  entitled  to  com- 
pensation for  the  loss  he  sustained  from  the  delay.  (4) 

have  been  unreasonably  short.  In  Stewart  v.  Smith,  6  Hare,  222,  n,  a  notice  to 
rescind  was  waived  in  case  vendor  produced  evidence  of  his  title  immediately  ; 
he  failed  to  produce  it,  and  his  suit  brought  to  enfoi-ce  the  contract  was  dis- 
missed, the  notice  being  held  proper.  In  Macbryde  v.  Weekes,  22  Beav.  r)33.  the 
nature  of  the  contract  i-eqiiiring  haste,  a  notice  of  one  month  to  the  vendor  within 
which  to  complete,  was  held  reasonable,  although  more  than  nine  (9)  weeks  had 
already  elapsed  ;  and  a  pei'emptory  notice  that  the  contract  is  immediately  at  an 
end,  it  has  been  said  is  sufficient,  where  the  pai-ty  notified  acquiesces  or  does  not 
ask  for  any  time  (but  qii.  as  to  the  last).  See  Mann  v.  Dunp,  2  Ohio  St.  187. 
[Notice  to  an  agent  who  has  no  opportunity  before  the  time  fixed  to  communicate 
with  his  principal,  insufficient ;  so  held  in  Austin  v.  Wacks,  30  Minn.  335..] 

(1)  In  Reynolds  v.  Nelson,  6  Md.  IS,  a  notice  by  one  party  that  he  would  con- 
sider the  non-performance  by  the  other  by  a  certain  day,  as  equivalent  to  a  refusal 
to  perform  the  contract,  was  held  not  a  sufficiently  express  notice  to  make  time 
essential,  and  to  authorize  the  party  giving  it  to  rescind.  [See,  also,  Mudgett  v. 
Clay,  5  "Wash.  St.  103  (not  sufficient  for  vendors  to  tell  vendee  that  he  has  forfeited 
the  contract).] 

(2)  Webb  V.  Hughes,  L.  R.  10  Eq.  280,  per  Malins,  V.  C,  who  said,  in  addition  : 
"A  purchaser,  however,  is  not  bound  to  wait  an  indefinite  time,  and  if  he  finds, 
■while  the  negotiations  are  going  on,  that  a  long  time  will  elapse  before  the  con- 
tract will  be  completed,  he  may,  in  a  reasonable  manner,  give  notice  to  the  ven- 
dor, and  fix  a  jteriod  at  which  the  business  is  to  be  terminated.  But  having  once 
gone  on  negotiating  beyond  the  time  fixed,  unless  the  negotiations  were  without 
prejudice  miley  v.  Thomas,  L.  R.  3  Ch.  61),  he  is  bound  not  to  give  immediate 
notice  of  abandonment,  but  must  give  a  reasonable  notice  of  his  intention  to  give 
up  his  contract  if  a  title  is  not  shown."  As  to  waiver  of  notice  by  subseciuent 
continued  negotiation,  see  Prothro  r.  Smith,  (5  Rich.  Kq.  324. 

(3)  Nokes  V.  Lord  Kilmorey,  1  DeG.  &  Sm.  444.  4.58.  Verbal  statements  that 
time  was  to  be  essential,  made  by  the  vendee's  agent  at  the  time  of  concluding 
the  (contract,  were  admitted  in  evidence  on  part  of  defendant  for  purpose  of 
showing  notice. 

(4)  Gedye  v.  Duke  of  Montrose,  26  Beaw  4.5.  Agreement  for  the  sale  of  a  lease, 
•♦with  possession  on  the  first  of  December,  the  rent  to  commence  at  Christmas." 

483 


TIME  AS  AFFECTING    THE  RIGHT.  471 

Time,  -when  material. 

Sec.  o9U.  111.  Much  confusion  has  undoubtedly  arisen,  in  the  minds 
of  both  judges  and  text- writers,  from  failing  to  distinguish  between 
the  rules  of  time  as  essential,  and  the  rules  pertaining  to  time  con- 
sidered as  material.  In  judicial  opinions,  which  profess  to  deal  with 
time  as  of  the  essence  of  the  contract,  we  may  find  long  discussions 
upon  the  effect  of  unreasonable  delay,  and  what  circumstances  will 
excuse  the  delay ;  whereas,  if  titae  is  of  the  essence,  no  question  of 
delay  or  of  laches,  using  these  words  with  any  regard  to  their  true 
meaning,  can  properly  arise.  If  time  is  essential,  the  stipulation  of  the 
contract  must  be  exactly  complied  with ;  not  the  delay,  but  failure  to 
perform  at  the  exact  day,  cuts  off  the  rights  of  the  defaulting  party^ 

Three  aspects  of  time,  immaterial,  essential,  and  material. 

Sec.  400.  There  are,  in  fact,  three  different  aspects  or  conditions  in 
which  time  is  to  be  viewed  in  respect  to  the  performance  of  contracts 
in  equity.  1.  In  the  first  and  lowest,  time  may  with  propriety  be 
called  irmnaterial.  In  the  cases  and  under  the  special  circumstances 
which  belong  to  this  division,  delay  can  hardly  be  said  to  impair  the 
rights  of  a  party  to  enforce  performance ;  or,  at  all  events,  delay,, 
although  extremely  long  continued,  is  most  easily  excused — excused 
by  facts  which  under  other  circumstances  would  furnish  no  ground 
whatever  of  excuse,  such  as  the  pecuniary  inability  of  the  party  in 
default,  the  difficulty  of  perfecting  title,  and  the  like;  and  in  many 
of  the  cases  heretofore  cited,  no  facts  were  shown  which  could  be 
called  a  legal  or  equitable  excuse.  Of  course,  in  order  that  time 
should  be  thus  immaterial,  the  circumstances  should  be  special.  Where 
the  purchaser  has  received  the  equitable  title,  has  obtained  the  posses- 
sion of  the  land,  has  been  in  the  enjoyment  of  its  rents  and  profits, 
has  paid  the  price,  and  nothing  remains  to  be  done  to  complete  the 
contract  except  the  conveyance  of  the  legal  title,  and  nothing  has 
happened  which  rendered  the  want  of  the  legal  title  injurious  or 
detrimental  to  the  vendee,  a  delay  in  conveying  the  legal  title, 
though  lasting  through  many  years,  and  without  any  excuse  of  real 
difficulty  in  the  way,  has  been  repeatedly  held  to  be  no  impediraen-'- 
to  a  decree  of  specific  performance.  The  same  is  true  where  the 
delay  has  been  in  completing  the  payment,  provided  there  has  been 
no  substantial  change  in  the  circumstances  and  relations  of  the  parties 
during  the  interval,  and  the  interest  will  constitute  not  only  a 
theoretical,  but  an  actual  compensation  for  the  purchaser's  default  in 

By  vendor's  default  possession  was  not  given  until  January  31.     Held,  per  Sip 
John  Romillt,  M.  R.,  that  the  vendee  was  entitled  to  compensation. 
484 


/^7S  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

payment.  Many  of  the  cases  cited  in  the  fii-st  subdivision  of  the 
present  section,  illustrating'  the  general  doctrine  that  time  is  not 
essential,  are  examples  of  the  innnateriality  which  I  am  now  describ- 
ing. Of  course,  it  is  not  to  be  uiulerstood,  that  even  in  these  cases,  a 
court  of  equity  pays  absolutely  no  attention  to  the  lapse  of  time.  Time 
of  performance  is  so  immaterial,  that  d^'lay  is  excused  by  compara- 
tively tritiing  circumstances,  which  account  for  the  default,  but  which 
are  not  any  legal  grounds  for  departing  from  the  literal  terms  of  the 
contract,  and  which  would  not  be  accepted  as  sufficient  by  a  court  of 
equity  in  a  case  where  time  was  regarded  as  material. 

Sec.  401.  At  the  opposite  extreme  is  the  aspect  of  time  as  of  the 
essence  of  the  contract.  Whenever  time  is  essential,  delay,  as  such, 
is  never  to  be  taken  into  account ;  that  is,  the  party  in  default  does 
not  lose  his  right  to  enforce  the  agreement,  simply  because  he  delayed 
in  the  performance,  but  because  he  failed  to  comply  with  its  terms 
literally  and  exactly  upon  the  very  day  when  the  act  was  required 
to  be  done  according  to  his  stipulation.  If  time  is  of  the  essence  of 
the  contract,  then  the  whole  agi'eement  with  all  its  rights  and  obli- 
gations turn  upon  a  performance  at  the  very  appointed  day.  A  neglect 
for  tw^enty-four  hours  is  as  truly  a  breach,  as  a  neglect  for  a  month  or  a 
year.  In  short,  if  time  is  essential,  the  same  strict  rule  prevails  in  equity 
as  at  law,  and  the  party  who  has  stipulated  to  do  an  act  at  a  specified 
time,  must  do  it  at  that  time,  or  he  loses  all  his  remedial  rights  in  a 
court  of  equity  as  well  as  in  a  court  of  law\  No  such  circumstances 
will  excuse  his  failure  and  preserve  his  rights,  as  will  avail  to  account 
for  his  delay  in  a  case  where  time  is  simply  material.  Nothing  will 
serve  as  an  excuse,  except  the  same  class  of  events  beyond  the  reach 
of  human  control,  which  will  dispense  with  an  exact  performance  of 
any  term  of  any  contract — such  event  as  an  act  of  God,  or  perhaps 
an  inevitable  accident — or  such  events  as  will  furnish  a  ground  in 
equity  for  discharging  the  obligation  of  all  agreements,  such  as  fraud 
or  substantial  mistake,  or  the  default  or  procurement  of  the  other 
party. 

Sec.  402.  Occupying  a  position  between  these  extremes,  is  the 
third  aspect  under  which  time  may  be  viewed — that  is,  as  material  to 
the  contract.  When  time  is  simply  material,  and  not  essential,  delay 
is  a  most  important  element  affecting  the  remedial  right,  and  the 
question  to  be  examined  and  determined  in  every  case  of  delay  is, 
whether  it  was  reasonable  or  unreasonable — or,  in  other  words, 
wliether  it  can  be  sufficiently  accounted  for  and  excused,  or  whether 
it  was  witliout  excuse,  and  therefore  constitutes  the  lacJies  which  ig 

485 


TIME  AS  AFFECTING    THE  RIGHT.  47S 

fatal  to  the  obtaining  the  equitable  relief.  If  time  is  material  a  fail- 
ure to  comply  with  the  terms  of  the  contract  is  not  necessarUy  a  bar 
to  an  enforcement ;  but  it  throws  upon  the  defaulting  party  the  bur- 
den of  explaining  his  neglect  and  of  satisfying  the  court  that,  not- 
withstanding the  failure,  a  denial  of  the  remedy  to  him  would  be 
inequitable.  Certain  conditions  must,  therefore,  be  met  and  fulfilled 
by  the  party  who  asks  the  aid  of  the  court  in  the  face  of  his  delay. 
In  the  first  place,  the  delay  must  not  have  been  too  long ;  and  what 
is  reasonable  or  unreasonable  in  point  of  duration  must  depend  very 
largely  upon  the  circumstances  of  each  case,  and  especially  upon  the 
cause  or  occasion  of  the  delay.  A  delay  resulting  even  from  inevita- 
ble accident  may  be  so  long,  that  it  would  be  inequitable  to  enforce 
performance  upon  the  other  party.  In  the  second  place,  the  delay, 
whether  long  or  short,  must  be  accounted  for  and  explained  by  facts 
and  circumstances  which  are  regarded  by  courts  of  equity  as  sufficient 
to  justify  and  excuse  it.  The  cause  of  a  delay  may  be  of  the  most 
peremptory  character,  making  it  absolutely  impossible  for  the 
defaulting  party  to  have  performed  any  sooner,  and  yet  it  may  not 
be  of  a  kind  w^hich  a  court  of  equity  will  accept  as  sufficient  to  excuse 
the  failure.  For  example,  when  the  time  of  payment  is  material^ 
and  the  purchaser  is  delayed  in  making  his  payments  by  his  own 
pecuniary  inability — aai  inability  wdiich  existed  when  he  entered  into 
the  agreement,  and  which  he  had  no  reason  to  suppose  would  be 
removed  before  the  day  for  his  performance  arrived — this  fact  may 
explain  the  delay  and  may  even  prove  that  it  was  inevitable,  but  it 
would  not  be  accepted  by  a  court  of  equity  as  sufficient  excuse  and 
justification  to  entitle  the  vendee  to  a  decree  against  the  vendor.  In 
treating  the  subject  of  time  considered  as  material  in  performing  a 
contract,  the  practical  question  to  be  answered  is,  when  is  the  delay 
reasonable  and  excused,  so  that  the  defaulting  party  shall  be  entitled 
to  relief,  and  when  is  it  unreasonable,  and  amounting  to  laches,  seas 
to  defeat  the  right  to  the  remedy  of  specific  performance  ? 

Where  the  delay  is  caused  solely  by  the  acts  or  omissions  of 
either  party. 

Sec.  403.  1.  Although  time  is  not  ordinarily  essential,  yet  as  a 
general  rule,  it  is  material.  Except  in  the  comparatively  few  cases 
where  time  is  immaterial,  and  delay,  however  long,  is  hardly  of  any  con- 
sequence, the  doctrine  is  familiar  and  fundamental  that  a  party  seeking 
the  remedy  of  sj)ecific  performance  as  the  actor  (as  plaintiff  in  an  action, 
or  as  defendant  setting  up  a  counter-claim),  and,  also,  the  party  who 
desires  to  maintain  an  objection,  founded  upon  the  other's  laches,  must 
show  himself,  in  the  language  of  many  judges,  to  have  been  "ready, 
486 


474  SPECIFIC   I'EliFOHMAyCK    OF   CONTRACTS. 

desirous,  prompt,  and  eayer."(l)  Mere  lapse  of  time,  without  any- 
other  circumstances  of  default  in  ((informing-  witli  the  terms  of  tlic 
contract,  may  defeat  a  specific  performance,  for  a  court  of  ecjuity,  even 
when  equitable  rights  of  action  are  not  embraced  within  the  statute 
of  limitations,  will  not  enforce  stale  demands,  nor  aid  parties  who  liave 
long  slumbered  upon  their  remedial  rights. (2) 

(1)  Lloyd  V.  Colk'tt.  4  IJro.  C,  C.  40il ;  4  W-s.  'OHO  n.  ;  ILin-iiiirton  ?..  Wh(;elor,  4 
Yes.  68(5;  Guest  v.  Ili'mphiVy,  5  W's.  818;  Alley  t).  Des.-li;iiiii.s,  ];{  V('s.  225; 
Walker  v.  Jeih-eys,  1  llair,  '6'yl ;  Soiithcoiuh  v.  Uj).  of  JCxetei-,  tj  IIai<',  213,  218  ; 
Dorin  v.  Harvey,  15  Sim.  49  ;  AUoway  v.  Biaine,  26  13eav.  575  ;  Shai-]M'.  Wriylit. 
28  Beav.  150;  M(-Miirray  v.  Spicer,  L.  R.  5  Kt^.  527,537;  Rourei-.s  •?).  Saundei-s,  16 
Me.  98  ;  Ely  v.  McKay,  12  Allen,  323  ;  Sulling-s  v.  Sulliuys,  9  Allen,  234  ;  Van  Zandt 
V.  New  York,  8  I3os\v.  375  ;  Delavan  v.  Duncan.  49  N.  Y.  485 ;  IVters  v.  Dela- 
plaine,  49  N.  Y.  362  ;  Bullock  v.  Adams,  5  C.  K.  Gi-een,  367  ;  Thoi-p  v.  Peltit,  1  C. 
E.  Green,  488  ;  P:arl  v.  llalsey.  1  ^IcCarter,  332  ;  Dubois  v.  Baum,  10  Wri^dit,  537  ; 
Bellas  V.  Hays,  5  S.  &  R.  427;  Kirby  t;.  llan-ison,  2  Ohio  St.  326;  biidlow  v. 
Cooiier,  13  Ohio,  552  ;  Rumming-ton  v.  Kellev,  7  Ohio,  432,  437  ;  Hij^by  t'.Whittakei-, 

8  Ohio,  198  ;  Bennett  v.  Welch',  25  Ind.  140 ';  O'Kane  v.  Kiser,  25  lad.  168  ;  McCul- 
loch  V.  Dawson,  1  Ind.  413 ;  McClellan  v.  Darraph,  50  111.  249  ;  Fitch  v.  Boyd, 
55  111.  307  ;  Anderson  v.  Frye,  18  111.  94  ;  Booten  v.  Scheffer,  21  Gratt.  474,  491  ; 
Breckeni-idg-e  v.  Clinkinbeard,  2  Litt.  127  ;  Gentry  v.  Roji^ers,  40  Ala.  442  ;  De 
Cordova  v.  Smith,  9  Tex.  129  ;  Glasscock  v.  Nelson,  26  IVx.  150  ;  Moot  v.  Scriven. 
33  Mich.  500  (a  delay  of  vendee  held  not  to  defeat  his  riq-ht) ;  Leaii-d  i\  Smith,  44 
N.  Y.  618  (delay  excused) ;  Van  Campen  v.  Knight,  63  Barb.  205  (ditto) ;  ^lorg-an 
V.  Bergen,  3  Neb.  209  (ditto) ;  Allen  v.  Atkinson,  21  Mich.  351  (vendee  v>  lien  enti- 
tled to  a  reasonable  delay);  Ilaughwout  v.  Murjihy,  6  C.  E.  Green,  118  ;  Law- 
rence V.  Lawi-ence,  ih.  317 ;  Merritt  v.  Brown,  th.  401 ;  Howe  v.  Rogei-s,  32  'J'ex. 
218  ;  Campbell  v.  Hicks,  19  Ohio  St.  433  ;  Hubbell  v.  Van  Schoening,  58  Barb. 
498  ;  49  N.  Y.  326  (cases  in  which  ])laintitl''s  laches  were  fatal  to  his  recovei-y) ; 
Eppinger  v.  McGreal,  31  Tex.  147  (long  delav  of  vendee  fatal) ;  Mix  v.  Balduc,  78 
111.  215  ;  Pecki^  Brighton  Co.,  69  111.  200  ;  McDermid  v.  McGi-egor.  21  Minn.  Ill 
(vendee's  unexcused  delay  of  a  few  months  held  to  defeat  his  recovery) ;  Ritson 
V.  Dodge,  33  Mich.  463  (vendee's  delay  of  thirty  years  fatal) ;  Norris  v.  Knox,  1 
Pittsb.  56  (delay  of  thirty-four  years  ditto) ;  Delavan  v.  Duncan,  49  N.  Y.  485 
(vendor's  delay  of  three  years  and  six  months  fatal) ;  Finch  v.  Parker,  49  N.  Y.  1 
(vendee's  delay  of  three  years  fatal);  Mason  v.  Owens,  56  111.  25i) ;  Hawley  r. 
Jelly,  25  Mich.  94  (unexcused  dtday  of  vendee)  ;  jNIcLaui-in  v.  Barnes,  72  111.  73 
(ditto) ;  Roby  v.  Cossitt,  78  111.  638  (gi-eat  delay  of  vendee) ;  Taylor  v.  Merrill,  55 
III.  52  ;  Fitch  v.  Boyd,  lb.  307  (vendee  must  not  uni-easonably  (lelay) ;  Brown  v. 
Covillaud,  6  Cal.  566  ;  Pearis  v.  Covillaud,  6  Cal.  617  ;  (ri-een  v.  Covillaud,  10  Cal. 
317  ;  Weber  v.  Marshall,  19  Cal.  447  ;  Ste(d(!  v.  Branch,  40  Cal.  3 ;  Williams  v. 
Hart,  116  Mass.  513  (delay  of  twenty  years) ;  Boyd  v.  Schles.singer,  59  N.  Y.  301, 
305  (vendee  had  not  only  delayed,  but  on  vemlor's  oiler  to  ]ierform  had  refused 
to  complete,  and  these  acts  were  helil  to  defeat  his  claim  when  he  subse(iuently 
sued  for  a  specific  enforcement) ;  Davison  v.  Associates  of  the  Jersey  Co.,  6  Hun, 
470,  and  cases  cited.  [See,  also,  Maijree  v.  McMaiuis,  70  Cal.  553 ;  McFadden  v. 
Williams,  68  Tex.  625  ;  Williams  v.  Williams,  50  Wis.  311  ;  Runnvson  v.  Rozell, 
106  Pa.  St.  407  ;  Love  v.  V/elch,  97  N.  C.  200  ;  Fowler  v.  Salherlaiid,  68  Cal.  414  ; 
Johnson  v.  Somerville,  33  N.  J.  Eq.  152  (delay  of  sixty  years)  ;  Harris  v.  Ilille- 
gass,  66  Cal.  79  (relief  rei'u.sed,  although  defen.se  of  laches  was  not  alleged  in 
answer);  Thornburg  v.  Cole,  27  Kan.  490;  Blackwell  v.  Ryan,  21  S.  C.  112; 
McCal^ei).  Matthews,  40  Fed.  Rep.  338  (eight  years)  ;  St(nvar't  v.  Allen,  47  Fed. 
Rep.  399  ;  Lee.ls  v.  Penrose,  46  N.  J.  E(|.  294  ;  Clay  v.  Deskins  (W.  Va.),  15  S.  E. 
Rep.  85  (April  2,  1892)  ;  Dai.sz's  Appeal,  128  Pa.  St.  572  ;  Hodg(i  -y.  Weeks  (S.  C), 

9  S.  E.  Rep.  953  (ten  yeare)  ;  Duk<!s  v.  Bauirh  (Ga.),  16  S.  E.  Rep.  219  ;  Knox  v. 
Spratt,  23  Fla.  64,  66;  Cook  y.  Stalford  (Mich.),  48  N.  W.  Rej).  785  (thirty-.six 
years)  ;  Hatch  v.  Kizer  (111.),  30  N.  E.  Re]i.  605  (eight  years)  ;  Cocanaugher  v. 
Green  (Ky.),  20  8.  W.  R.-p.  .542  ;  Re.pia  v.  Snow,  76  Cal.  690  (three  yeai-s)  ;  Moi-se 
V.  Seibold,  147  111.  318  (four  ycnrs'  delay).] 

(2)  Delavan  v.  Dimcan.  49'N.  Y.  485  ;  P(>ters  v.  Delaphane,  49  N.  Y.  362  ;  Eyro 
V.  Eyre,  4  C.  E.  (irc(>n,  102  ;  Cadwahider's  App(^al,  7  P.  F.  Smith,  1.58  ;  Nelsoji  v. 
Hagerstown  Ijank.  27  Md.  ."-I  ;  Kirliy  7-.   H;ii-rison,  2  Ohio  St.  326;  Ander.son  ii. 

Ib7 


TIME  AS  AFFECTING    THE  RIOHT.  475 

"Where  plaintiff  has  been  in  possession. 

Sec.  401.  In  determining  what  amount  of  mere  delay  in  bringing 
his  suit  will  defeat  the  plaintiff's  claim  to  a  specific  performance  ;  or, 
in  other  words,  what  lapse  of  time,  after  his  right  of  action  accrued, 
will  render  the  demand  stale — the  rule  prevails  in  equity  as  in  law, 
that  while  the  plaintiff'  is  in  possession  under  an  assertion  and  exer- 
cise of  right,  the  lapse  of  time  does  not  i)rejudice  his  remedial  right. 
If  the  vendee,  therefore,  takes  and  retains  [)ossession  of  the  premises 
w^itli  the  vendor's  consent,  his  mere  delay  in  bringing  a  suit,  or  even 

Pi-y,  IS  111.  94 ;  Fitch  v.  Boyd,  55  111.  307  ;  Johnson  v.  Hopkins,  19  Iowa,  49  ; 
Conway  v.  Kinsworthy,  21  Ark.  9  ;  Epiiinger  v.  McGreal,  31  Tex.  147.  In  Anderson 
v.  Fry,  si(,p7U,  the  vendor  delayed  more  than  two  years  after  being  paid,  before 
ofFei-ing-  to  convey,  and  this  delay  was  held  to  be  laches,  which  was  a  bar  to  his 
obtaining  a  specific  performance,  and  to  his  restraining,  by  injunction,  an  action 
at  law  by  the  vendee  to  recover  back  the  purchase-money.  In  Kirby  v. 
Harrison,  time  was  not  essential,  but  the  vendee's  failure  to  pay  at  the  day,  and 
his  subsequent  failure  to  pay  in  compliance  with  a  demand  by  the  vendor,  were 
held  to  bar  his  right  to  a  specific  performance,  although  the  vendor's  demand  was 
not  accompanied  with  any  notice  of  rescission  in  case  of  non-payment  at  the  time 
specified  in  the  demand.  The  delay  which  may  thus  constitute  a  fatal  laches, 
may  be  either,  (1),  in  not  performing  the  terms  of  the  agreement ;  or  (2),  in  not 
bringing  a  suit  to  enforce  one's  remedial  right ;  or  (3)  in  not  prosecuting  the  suit 
with  diligence  after  it  is  brought.  See  Moore  -».  Blake,  1  Ball  &  B  62.  In  Mil- 
ward  V.  Earl  Thanet,  5  Ves.  720,  n.,  Lord  Alvanley  used  the  language  so  often 
repeated  by  other  judges  :  "A  party  cannot  call  upon  a  court  of  equity  for 
specific  performance  unless  he  has  shown  himself  ready,  desirous,  prompt,  and 
eager."  But  in  Eads  v.  WiUiams,  4  DeG.  M.  &'  G.  691,  the  rule  was  stated  by 
Lord  Cranworth  in  a  manner  not  quite  so  rhetorical,  but,  perhaps,  more  accu- 
rate :  "  Specific  performance  is  relief  which  this  court  will  not  give,  unless  in 
cases  where  the  parties  seeking  it  come  as  promptly  as  the  nature  of  the  case  will 
permit."  The  following  are  examples  taken  from  actual  decisions  which  illustrate 
the  doctrine  better  than  any  general  explanation  can  do.  In  Marquis  of  Hei-t- 
ford  V.  Boore,  5  Ves.  719,  the  plaintiff's  delay  of  fourteen  months  did  not  prevent 
his  obtaining  a  decree  ;  in  Eads  v.  Wilhams,  4  DeG.  M.  &  G.  674,  a  delay  of  three 
years  and  a  half  prevented  a  decree  ;  in  Southcomb  v.  Bp.  of  Exeter,  6  Hare, 
213,  a  delay  from  January  17,  1842,  to  August  30,  1843,  and  in  Lord  James  Stuart 
V.  London  &  N.  W.  Ry.  Co.,  1  DeG.  M.  &  G.  721,  a  delay  from  October,  1848,  to 
July,  18.50,  were  held  fatal.  See,  also,  Thomas  v.  Blackman,  1  Coll.  C.  C.  301  ; 
Guest  V.  Homfray,  5  Ves.  818  ;  Harrington  v.  Wheeler,  4  Ves.  686  ;  Spurrier  v. 
Hancock,  4  Ves.  667-  In  McMillin  v.  McMillin,  7  Monr.  560.  a  delay  of  five  years 
in  suing,  the  plaintiff  not  having  been  in  possession,  was  held  a  bar  to  a  specific 
jierformance  of  a  contract  for  sale  of  land  ;  in  Osborne  v.  Bremar,  1  Dessaus.  486, 
vendor's  delay  of  three  years  in  making  title  was  held  not  to  prevent  his  obtain- 
ing a  decree  ;  while  in  Haffner  v.  Dickson,  2  Har.  &  J.  46.  the  plaintiff's  delay  of 
twenty-seven  years  in  bi-inging  suit  was  held  not  to  bar  his  right  to  a  specific  per- 
foi-mance.  In  these  American  cases  the  mere  lajise  of  time  after  the  right,  of 
action  accrued,  before  filing  the  bill,  was  set  up  as  a  defense,  by  analogy  to  the 
statute  of  limitations  at  law,  and  the  question  of  the  plaintiff's  delay  in  fulfilling 
the  terms  of  the  contract  on  his  part,  was  not  the  gist  of  the  defense.  See,  also, 
oases  cited  in  the  last  note. 
488 


476  SPECIFIC   PERFOHMAXCE    OF   CONTRACTS. 

ill  iJayiug  the  inice,  will  \wi  })reveiit  him  from  compelling  a  convey- 
ance upon  a  siibse(iiient  i)ayment  or  tender  of  the  amount  due  ;  nor 
^vill  his  rii^lit  to  the  relief  be  cut  off  until  the  vendor  places  a  limit  to 
the  lapse  of  time  by  a  demand  of  payment  at  or  before  a  .specilied 
<lay,  and  by  a  notice  that  the  agreement  will  be  rescinded  unless  the 
d(Muand  is  comi)lied  Avith,  and  the  vendee's  default  thereon. (1)  The 
di>l'endant,  in  order  to  avail  himself  of  the  plaintiff's  delay  as  a 
defense,  must  have  performed,  or  been  r^ady  and  willing  to  perform, 
all  the  terms  of  the  contract  on  liis  own  part. (2) 

Where' the  contract  is  substantially  executed,  the  purchaser  has 
obtained  possession,  and  of  course  is  vested  with  an  equitable  title, 
but  the  legal  title  is  yet  held  by  the  vendor,  the  vendee's  delay  in 
bringing  a  suit  to  compel  a  conveyance,  however  long  continued,  will 
not  defeat  his  remedy  of  a  specihc  performance,  unless  perhaps  the 
situation  of  the  vendor  and  his  relations  to  the  land  have  been  so 
altered  in  the  meantime  that  a  specific  execution  of  the  agreement 
will  be  inequitable. (3) 

(1)  Ely  ■«.  McKav,  12  Allen,  323  ;  Schmidt  v.  Living-stone,  3  Edw.  Ch.  213 ;  Dubois 
V.  Baum,  10  Wright,  5:17  ;  Williams  v.  Staake,  2  B.  Men.  196  ;  Mason  v.  Wallace,  4 
McLean,  77.  [Si>e,  also,  Hunkins  v.  Hunkins  (N.  H.)  18  Atl.  Rep.  655  ;  White  «. 
Patterson,  139  Pa.  St.  429 ;  McClure  v.  Fairfield,  153  Pa.  St.  411  ;  Norman  v. 
Bennett,  32  W.  Va.  614  (twenty-three  years'  delay) ;  Holden  v.  Purifoy,  108  N.  C. 
163  (possession  suhse(piently  abandoned  does  not  excuse  delay) ;  Brag-g  V.  Olson, 
128  111.  540  ;  Hall  v.  P.  &  E.  Ry.  Co.,  (111.)  32  N.  E.  Rep.  598  (twenty  years' 
<lelay);  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Chishohn,  (Minn.)  57  N.  W. 
Rep.  63;  Coft'ey -u.  Einiirh,  l.>  Colo.  184;  Metcalf  v.  Hart  (Wyo.)  27  Pac.  Rep. 
900  ;  Sayward  v.  Gardircr,  5  Wash.  St.  247  ;  Mad.irett  v.  Clay,  5  Wash.  St.  103  ; 
Lambert  v.  Weber,  83  Mi(;h.  395.]  But  the  vendee's  mere  possession  of  the  land, 
without  payment  of  tlie  price,  will  not  prevent  tlie  statute  of  limitations  fi-om 
runnim^  against  his  right  of  action,  if  it  has  accrued,  at  least  under  the  statute  of 
New  Yorlw  McCotter  v.  Lawrence,  6  T.  &  C.  393  ;  4  Hun,  107  ;  [but  see  Day  v. 
Cohn,  65  Cal.  508.]  As  illustrations  of  the  text,  see,  also,  Green  v.  Finin,  35 
Conn.  178  ;  Stretch  v.  Schenck,  23  Ind.  77. 

(2)  House  V.  Beatty,  7  Oliio,  417,  per  Wood,  J.,  held,  that  "  to  entitle  defendant 
to  rely  on  the  staleness  of  the  plaintilf 's  cl.iim,  it  must  appear  that  he  (defendant) 
performed,  or  was  ready  and  willing  to  ]iei"form,  all  the  substantial  conditions 
precedent  on  his  part,  and  that  the  jtlaintitfonaitted  some  duty  or  obligation  rest- 
ing on  him,  and  then,  if  the  plaintiff  sutlered  an  unreasonable  time  to  elapse  with- 
out making  good  his  default,  the  court  might  infer  that  he  had  waived  or 
relinquished  his  right." 

(3)  The  cases  on  this  point  are  very  strong.  In  adtlition  to  those  cited  in  the 
previous  notes :  Crofton  i\  Orinsby,  2  Sch.  &  Lef.  604,  per  Lord  Redesdale.  In 
case  of  one  who  makes  a  contriict  for  a  lease  as  tenant,  who  takes  possession, 
pays  his  rent,  and  has  all  the  enjoyment  of  the  premises  given  by  the  agreement, 
his  <lelay  in  suing  to  compel  an  execution  of  the  lease  will  not  prejudice  his  right 
to  that  relief,  Clarke  v.  Moore,  1  Jon.  &;  Lat.  723  ;  Sharp  v.  Milligan,  22  Beav. 
606;  in  Burke  v.  Smyth,  3  J-m.  &  Lat.  193,  plaintiff  had  contracted  for  the 
lease  of  a  shop  and  this  ])ur(;hase  of  the  stock  in  ti'ade  ;  had  paid  for  the  stock, 
gone  into  po.ssession  of  the  shop,  and  paid  the  rent,  but  vendor  had  refused  to 
execute  the  lease  on  some  fi-ivolous  ground — held,  that  plaintiff's  d(>lay  was  no 
defense  to  his  demand  for  a  specific  enforcement.  In  Sliejiheard  v.  Walker,  L.  R. 
20  E(p  659,  the  same  rule  was  ai)plied  against  the  tenant.  At  the  expiration  of 
his  lease  in  July,  18.j7,  the  tenant  signed  an  agreement  with  the  lessor  to  t:ike  a 
new  leiise  for  thirty-on(!  years,  at  tin;  same  r(>nt,  and  on  \\w  pa\-ment  of  600/.  at 
the  day  fixed  for  completion,  viz..  August  1,  1857.  A  draft  lease  was  sent  to 
the  tenant  for  his  ai)proval.  biit  was  never  executed  nor  return<'d  by  him, 
and  the  lessor  took  no  fui-ther  steps.  Tenant  continued  in  pos.session,  and 
paid  rent  at  the  old  rate,  but  did  not  pay  the  600Z.,  nor  any  intert'st  thereon. 
In  1871  the  lessor  died,  and  his  per.sonal  reprensentatives  filed  this  bill  for 
a  specific  performance.  HrUl,  the  lapse  of  time — more  than  fourteen  yeai-s — 
was  no   defense,    and   tenant    was    obliged    to    perform    his    agreement,   and 

489 


TIME   AS   AFFECTING    THE    RIGHT,  477 

Where  caused  by  defendant's  fault. 

Sec.  40 ').  In  accordance  with  the  rule  that  a  defendant  who  desires 
to  rely  upon  the  plaintiff" 's  delay  as  a  ground  for  defeating  the  suit, 
must  himself  have  been  ready,  willing,  and  prompt,  it  follows  that  a 
defendant  can  never  take  advantage,  as  a  defense,  of  a  delay  which 
he  himself  has  caused.(l) 

Rights  preserved  notwithstanding  the  delay. 

Sec.  406.  The  naked  fact  that  a  period  of  time  greater  or  less  in 

pay  the  600Z.,  and  interest  from  August  1,  1857.  In  Moss  v.  Barton,  L. 
R.  1  Eq.  474.  an  agi-eenient  to  let  a  house  for  three  yeai-s  contained  a 
stipuhitiou  that  the  landlord  would,  at  the  request  of  the  tenant,  grant  huu 
a  fui'ther  lease  of  the  premises  ai  the  same  rent,  for  a  tei-m  of  either  tive, 
seven,  fourteen,  or  twenty-one  years  from  the  expiration  of  the  previous  thi-ee 
years  holding,  and  the  tenant  stipulated  to  keep  the  premises  in  repair.  The 
tenant  delayed  until  four  years  after  the  expiration  of  the  original  three  years, 
and  then  sued  for  a  specific  performance,  having  continued  in  poasession,  paying 
rent  all  the  time.  Held,  the  tenant  was  entitled  to  a  decree  for  the  specilic  per- 
formance of  the  contract  for  a  further  lease,  notwithstanding  his  delay  ;  also, 
that  his  making  an  apijlication  to  the  landlord  two  years  previously  to  his  suit  for 
a  lease  at  a  reduced  rent,  which  the  landlord  had  refused,  was  not  a  waiver  ;  nor 
was  an  application  to  the  landlord  to  be  repaid  for  an  amount  expended  in  repaii-s, 
to  which  the  landlord  had  assented,  and  had  repaid  the  sum,  a  waiver,  although 
the  plaintiff  on  obtaining  his  lease  would  be  bound  to  refund  the  money  to  the 
landlord.  The  American  cases  are  equally  strong,  and  perhaps  even  stronger. 
Waters  v.  Travis,  9  Johns.  450,  a  conti'act  by  which  vendor  was  to  convey  at  a 
time  named,  and  vendee  was  to  secure  the  price  "  at  the  same  time."  Vendee  took 
possession  —  no  conveyance  was  made,  and  the  jirice  was  not  paid  for  fifteen 
years.  This  delay  was  held  not  to  prevent  the  vendee  from  obtaining  a  specific 
perfoi-mance.  In  Williams  v.  Lewis,  5  Leigh,  686,  a  delay  fi-om  1774  to  1822  did 
not  bar  the  vendee's  right  to  enforce  a  conveyance,  he  having  been  in  posse.ssion 
dui'ing  the  whole  period  ;  also,  Miller  v.  Bear,  B  Paige,  466  ;  Longworth  v.  Taylor, 
1  McLean,  395. 

(1)  Morse  x\  Merest,  6  Mad.  26  ;  Shrewsbury,  etc.,  Ry.  Co.  v.  Lomlon  &  N.  W. 
Ry.  Co.,  2  McN.  &  G.  324,  355  ;  Ridgway  v.  Wharton,  6  H.  L.  Cas.  292,  per  Lord 
St.  Leonards  ;  Mix  v.  Beach,  46  111.  311  ;  [Keim  v.  Lindley  (N.  J.  Eq.),  30  Atl. 
Rep.  1063  (Jan.  10, 1895)  ;  Lancaster  v.  Roberts  (111.),  33  N.  E.  Rep.  27.]  In  con-, 
tracts  where  time  is  not  essential,  so  long  as  both  parties  have  taken  no  steps  to 
assert  their  respective  rights  or  demand  a  completion,  so  long  as  the  vendor  has 
made  no  tender  or  offer  of  a  deed  or  demand  upon  the  vendee,  and  the  vendee 
has  made  no  tender  or  offer  of  the  price  or  demand  upon  the  vendor,  th'e  conti-act 
continues  to  subsist  until,  of  course,  it  should  be  barred  by  the  statute  of  limita- 
tions. [Meyer  v.  Andrews,  70  Tex.  327.]  Either  party  may  at  any  time  make  a 
proper  tender  or  offer  of  performance  and  demand  of  fulfillment  upon  the  other  ; 
neither  can  complain  of  the  other  doing  nothing  .so  long  as  he  himself  has  done 
nothing,  (Leaird  v.  Smith,  44  N.  Y.  618  ;  Van  Cainpen  v.  Knight,  63  Bai'b  205  ; 
Crabtree  v.  Levings,  53  111.  526)  ;  [Raymond  v.  San  Gabriel,  etc  ,  Co.  (C.  C.  A  ), 
53  Fed.  Rep.  SSJ ;  Ryder  v.  Loomis  (Mass.),  36  N.  E.  Rep.  836;  Riley  v.  Mi-- 
Namara  (Tex.),  18  S.  W.  Rep.  141  ;  Karns  v.  Olney,  80  Cal.  90 ;  Calanchini  v. 
Barnstetter,  84  Cal.  249] ;  and,  also,  where  the  contract  is  \vht)lly  silent  in  respect 
of  time.  Mather  u  Scoles,  35  Ind.  1.  [As  to  effect  of  .statute  of  limitation,  see 
Gibbons  v.  Hoag,  95  111.  45  ;  Preston  v.  Preston,  95  U.  S.  200  ;  Cotton  v.  Cotton, 

75  Ala.  345.] 

490 


478  SPECIFIC  PERFORMANCE   OF    CONTRACTS. 

length  has  elapsed  between  the  conclusion  of  the  contract  and  the 
taking  of  any  steps  for  its  enforcement,  does  not  necessarily  constitute 
the  laches  wliich  will  preclude  the  obtaining  of  relief  ;(1)  other  facts 
may  intervene,  other  circumstances  may  arise,  which  explain  the  delay, 
or  obviate  its  prejudicai  effects. (2)  Thus,  the  remedial  right  may 
be  preserved  through  any  lengtli  of  time  by  acts  or  declarations  of 
the  party  holding  the  right  which  sufficiently  show  tliat  he  claims  it 
to  be  still  existing,  and  that  he  intends  to  avail  himself  of  it,  or  by 
acts  or  declarations  of  the  other  party  wliicli  suffi{;iently  show  that 
he  admits  the  right  to  be  in  continual  existence  (IS)  But  a  continual 
claim  by  mere  words,  without  any  acts  in  conformity  with  and  sup- 
port of  it,  will  not  keep  alive  a  right  which  w^ould  otherwise  be  lost  by 
the  lapse  of  time. (4) 

Delay  by  vendee  for  speculative  purposes. 

Sec.  407.  Where  a  vendee  delays  in  completing  the  contract  in  order 
that  he  may  speculate  upon  the  chances  of  its  proving  to  be  an  advan- 
tageous bargain,  or  that  through  a  rise  in  value  or  other  change  of 
circumstances  his  gain  may  be  assured,  and  then  when  he  is  thus 
certain  that  it  will  be  a  fortunate  speculation  offers  to  perform  and  sues 
to  compel  a  conveyance  by  the  vendor,  a  court  of  equity  will  refuse  to 
grant  him  the  remedy,  even  although  he  may  have  at  an  earlier  day 
paid  part  of  the  purchase-price.(")  And  a  rise  in  the  value  of  the 
land  during  the  interval  will  always  be  a  fact  of  much  weight  in 
tending  to  show  that  the  vendee's  delay  was  speculative,  and  for  the 
very  purpose  of  awaiting  such  a  turn  favorable  to  himself.(6) 

(1)  [See  Maltby  v.  Austin,  65  "SVi.s.  527  ;  Gibbons  v.  Iloa^-,  03  III.  4.") ;  Davison 
V.  Davis,  125  U   S.  90.) 

(2)  [See  Deen  v.  Milne,  113  N.  Y.  303.] 

(.})  Snowman  w  Harford,  55  Mo.  107;  Schrocppol  v.  Ilopjier,  40  Barb.  425; 
Williston  ?)  Williston,  4  I  Barb.  635;  Pritchardt).  Todd,  38  Conn.  413;  Hoyt  v. 
Tuxbury,  70  111.  331;  Bi-ink  v.  Stcadinan,  70  111.  241  ;  Spalding  i>.  Alex.-ind'er.  6 
Bush.  IGO  ;  Peters  v.  Delai)laine,  4'.)  N.  Y.  3G-: ;  Ilnbbell  v.  Van  Schoenin.jr,  40  N. 
Y.  326;  [Young  ■(>.  Young,  51  N.  J.  Ecj.  401  (delay  of  nine  years  excused.  Avhen 
plaintiffs  have  lieen  engaged  in  pi-osecuting  snit.s  with  reasonable  diligence)  ] 

(4)  Clegg  V.  Edmundson.  26  L  J.  Ch.  67J  ;  Lehman  x\  McArthiu-,  L.  R.  3 
Eq.  746  ;  [Keim  v.  Lindley  (N.  J.  Ch  ),  30  Atl.  Rep.  1063  (Jan.  10,  1805).] 

(5)  Han-ingtcm  v.  Wheelei-,  4  Yes.  6S6;  Alley  v.  Deschamjis,  13  Yes.  225  ;  South 
Eastern  Ry.  Co  Knott,  10  Hare,  122;  Fii-th  v.  Greenwood,  1  Jur.  (N.  S  )  866  ; 
AUoway  v.  Braine,  26  Beav.  575.  In  Alley  7'.  Deschami>s,  sitpra,  Ld.  Ch.  Ekskinb 
said:  " It  would  be  dangerous  to  ])ermit  parties  to  lie  T)y,  with  <a  view  to  see 
whether  the  contract  will  i)rove  a  gaining  or  a  losing  bargain,  and  according  to 
the  event  either  to  abandon  it,  or,  con.-idei-ing  time  as  nothing,  to  claim  a  sp('<-itie 
performance,  which  is  ahvavs  the  subject  of  discretion."  Mcrritt  v.  Brown.  4  C. 
E.  Green,  286;  Kirby  ?)  Harrison.  \>.  Ohio  St.  326,  333;  Norris  v.  Knox.  1  Pittsb. 
56  ;  O'Fallon  v.  Kennerly,  45  M  •.  IJl ;  Roby  v.  Cossitt.  78  111.  638  ;  .b.hns  v.  Nor- 
ris, 7  C  E.  Green,  102;  Peters  v.  Delaiilaine,  40  N.  Y.  362  ;  Hnbbell  c  Yan 
Schoening,  49  N  Y.  32;; ;  f  McCain;  v.  Matthew.s  155  V  8.550;  Wolf  r.  Great 
F.alls,  etc.,  Co.  (Mont  ),  38  Pa-.  Rep.  115  (Oct.  23,  1804)  ] 

(6)  Hepburn  y  Anld,  5  Cranch,  262;  Brashier  v.  Gratz,  6  Wheat.  .')2^  .530; 
Cooper  V.  Brown,  2  McLean,  40.3 ;  McKay  v.  Carrington,  1  McLean,  50 ;  Rogers 

491 


TIME   AS   AFIECTiya    TUE   RIGHT.  479 

'^J^L^-.x  circLimstances  have  altered  during  the  delay. 

yi:c.  408.  The  rule  may  be  laid  down  as  geiuu-al,  applying  to  either 
the  vendor  or  the  vendee,  that  where  tliere  has  been  a  change  of  cir- 
cumstances or  relations  which  render  the  execution  of  the  contract  a 
hardship  to  the  defendant,  and  this  change  grows  out  of  or  is  accom- 
panied by  an  unexcused  delay  on  the  part  of  the  plaintiff,  the  change 
and  the  delay  together  will  constitute  a  sufficient  ground  for  denying 
a  specific  performance  when  sought  by  the  one  who  was  thus  in 
default.(l)  But,  as  has  been  already  stated,  neither  a  rise  in  value, 
nor  a  depreciation,  nor  a  loss  or  injury  to  the  property,  will,  in  the 
absence  of  unreasonable  delay  by  the  plaintiff,  avail  to  the  defendant 
as  a  bar  to  the  relief  sought  by  the  plaintiff. (2)      if  the  vendee  has 

T.  Saunders,  16  Me.  92  ;  Richmond  v.  Gray,  3  Allen,  25 ;  Goldsmith  v.  Guild,  10 
Allen,  2b9  ;  Ely  v.  McKay,  12  Allen,  323  ;  Patterson  v  Martz,  8  "Watts,  373,  374  ; 
Bellas  V.  Hays,  5  S.  &  R.  427  ;  Dubois  v.  Baum,  10  Wrig-ht,  .537 ;  Kirby  v.  Harrison, 
2  Ohio  St.  326,  333;  Pillow  v.  Pillow,  3  Humph,  644  ;  Colcock  v.  Butler,  1  Cessans, 
307  ;  Norris  v.  Knox,  1  Pittsb.  56  ;  [Rogers  v.  Van  Nortwick,  (Wis.)  58  N.  W. 
Rep.  757  (agreement  concerning  stock  which  has  greatly  risen  in  value).}  It 
should  be  remembered,  however,  that  as  the  vendee  becomes  the  equitable  owner 
of  the  premises,  he  is  entitled  to  any  rise  in  their  value  and  must  bear  any  loss 
which  may  happen — so  that  any  change  in  either  of  these  directions  would  not 
ordinarily  bar  a  suit  by  or  against  him.  The  rule  laid  down  in  the  text  assumes 
the  iiitent  of  the  delay  to  be  a  waiting  for,  on  account  of,  an  expected  rise.  See 
Low  V.  Treadwell,  12  Me.  447 ;  Falls  v.  Carpenter,_  1  Dev.  &  Bat.  Eq.  237,  and 
cases  cited  ante  in  the  first  subdivision  of  this  section. 

(I)  This  rule  includes  the  case  of  a  loss  or  accident  to  the  property,  and  of  its 
increase  in  value,  where  either  is  the  result  of  or  occasioned  by  the  plaintiflTs  delay; 
the  defendant  may  set  up  the  fact  and  the  delay  as  a  defense.  Miller  v.  Henlan, 
1  P.  F.  Smith,  (51  Pa.  St.)  265  ;  Porter  v.  Dougherty,  1  Casey,  405  ;  Pigg  v.  Cor- 
der,  12  Leigh,  69  ;  Booten  v.  Scheffer,  21  Gratt.  474,  495  ;  Garnet  v.  Macon.  2  Brock. 
185 ;  6  Call.  308  ;  B'k  of  Alexandria  v.  Lynn,  1  Pet.  376 ;  Christian  v.  Cabell,  22 
Gratt.  82 ;  Griffin  v.  Cunningham,  19  Gratt.  571  ;  Kirby  v  Harrison,  2  Ohio  St, 
326  ;  Merritt  v.  Brown,  4  C.  E.  Green,  286 ;  Westerman  v.  Means,  2  Jones,  97  ;  Nor- 
ris V.  Knox,  1  Pittsb.  56  ;  O'Fallon  v.  Kennerly,  45  Mo.  124  ;  Roby  v.  Cossitt,  78  111. 
638  ;  Johns  v.  Non-is,  7  C.  E.  Green,  102  ;  Boston,  etc.,  R.  R.  v.  Bartlett,  10  Gray, 
384  ;  Fuller  v.  Hovey,  2  Allen,  324  ;  Williams  v.  Hart,  116  Mass.  513  ;  HubbellD. 
Van  Schoening,  58  Barb.  498  ;  49  N.  Y.  326  ;  Peters  v.  Delaplaine.  49  N.  Y.  362 ; 
TiV)bs  V.  Morris,  44  Barb.  138  ;  Van  Zandt  v.  New  York,  8  Bosw.  375  ;  Haughwout 
V.  Murphey,  6  C.  E.  Green,  118  ;  Lawrence  v.  Lawrence,  6  Ih.  317  ;  Eyre  v.  Eyre, 
4  ib.  102  ;  Gariss  v  Gariss,  1  ib.  79  ;  Van  Doren  v.  Robinson,  1  ib.  256  ;  Du  Bois  v. 
Baum,  46  Pa.  St.  537 ;  Andrews  v.  Bell.  56  Pa.  St.  ZAl  ;  Cadwallader's  Appeal,  57 
Pa.  St.  158  ;  Nelson  v.  Hagerstown  B'k,  27  Md.  51 ;  Campbell  v  Hicks,  19  Ohio 
St.  433  ;  Thompson  v.  Bruen,  46  111.  125  ;  Iglehart  v.  (iibson,  56  111.  81 ;  Mason  v. 
Owens,  56  111.  259  ;  Rose  v.  Swann,  56  III.  37  ;  Shortall  v.  MitcheU,  57  111.  161  ; 
Phelps  V.  111.  Cent.  R.  R.  63  111.  468  ;  Toby  v.  Foreman,  79  111.  489 ;  Walker  v. 
Douglass,  70  111.  445;  Smith  v.  Lawrence,  15  Mich.  499;  McClintock  v.  Laing,  22 
Mich.  212;  Johnson  t).  Hopkins,  19  Iowa,  49;  Addington  v.  McDonnell,  63  N.  C. 
389  ;  Gentry  v.  Rogers,  40  Ala.  442  ;  Eppinger  v.  McGreal,  31  Tex.  147  ;  Glasscock 
V  Nelson,  26  Tex.  150 ;  Conway  v.  Kinsworthy,  21  Ark.  9  ;  [Holgate  v.  Eaton,  116 
U.  S.  33  ;  Davison  v.  Davis,  125  U.  S.  90  ;  Werder  v.  Cornell,  105  111.  169  (improve- 
ments made  during  the  period  of  api^arent  abandonment  of  the  contract. )  Holgate 
V.  Eaton,  116  U.  S.  33  ;  Lumber  Co.  V.  Harrigan,  36  Kan.  387;  Ruff 's  Appeal,  117 
Pa.  St  310;  Russell  v.  Baughman,  94  Pa.  St.  400;  Wonson  v.  Teuno,  129  Mass. 
405;  Rison  v.  Newberrv,  (Va.)  18  S.  E  Rep  916  (fall  in  prices);  Van  Buren  v. 
Stocking,  (Mich  )  49  N.'W.  Rep.  50  ;  Combs  v.  Scott,  (Wis  )  45  N.  W.  Rep.  532  ; 
Hagei-man  v.  Bates,  (Colo  )  38  Pac.  Rep.  1100  (Jan.  14,  1895)  ] 

(2)  Andrews  v.  Bell,  6  P.  F.  Smith,  343 :  Bi-ewer  v.  Hei-bert,  30  Md.  301 ;  Hale 
V.  Wilkenson,  21  Gratt,  75  ;  Ambrouse  v.  Kellei-,  22  Gratt.  769  ;  Booten  t'.  Schelfer, 
21  Gratt.  474,  494 ;  Coopei-  v.  Pena,  21  Cal  403 ;  [Austin  v.  Wacks,  30  Minn.  335.] 
And  see  ante  in  the  lirst  subdivision  of  the  present  section. 

492 


480  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

suffered  a  considerable  time  to  oIai)se  without  any  steps  to  enforce,  so 
that  it  may  fairly  be  inferretl  that  ho  ha;s  abandoned  his  rights,  and 
in  the  meantime  tlie  title  has  passed  from  the  vendor  to  devisees  or 
purchasers,  the  vendee  will  not  be  permitted  to  interfere  with  and 
defeat  the  rights  of  these  third  persons  by  obtaining  a  decree  for  tin- 
enforcement  of  the  agreement  against  them,  or  against  the  land  whirh 
has  come  into  their  ownership. (1) 

"When  delay  is  caused  by  untenable  objections  being  set  up, 
or  by  vendee's  pecuniaiy  inability. 
8ec.  409.  When  one  party  sets  up  an  untenable  objection  to  a  com- 
pletion of  the  contract,  and  thereby  causes  a  delay,  he  cannot  rely  upon 
such  delay  in  defense  to  a  specific  performance  asked  by  the  other. (2) 
And,  as  a  general  rule,  the  court  will  refuse  to  aid  a  vendee  who  has 
set  np  trifling  or  vexatious  objections  to  the  title,  and  thereby  hin- 
dered its  execution  by  the  vendor,  and  shown  a  manifest  intention  not 
to  perform  on  his  own  part ;  and  this  is  emphatically  so,  if  the  value 
of  the  property  has  increased  during  the  interval  of  delay. (3)  A 
court  of  equity  will  not  aid  a  vendee  who  has  delayed  in  making  the 
payments  required,  by  the  contract,  if  his  delay  was  caused  by  his 
actual  pecuniary  inability — that  is,  if  when  he  made  the  agreement 
he  was  unable  to  pay,  and  had  no  reasonable  ground  for  supposing 
that  he  would  be  able  to  comply  with  the  terms  of  the  contract  at  the 
stipulated  time.  A  purchaser  who  thus  enters  into  an  agreement, 
knowing  his  inability  to  fulfill,  is  not  dealing  honestly  or  justly  with 
the  vendor,  and  equity  will  not  relieve  him  from  a  default  which  was 
thus  inevitable,  and  which  placed  the  vendor  in  a  position  of  dis- 

(1)  Van  Doren  u  Ptobinson,  1  C.  E.  Green,  2.")t3 ;  Gariss  v.  Gai-iss,  1,  C.  E.  Green, 
79  ;  C-.ll'Mi  V  F-^rguson,  5  Casey,  247  ;  Porter  ?>.  Dougherty,  1  Casey,  40.") ;  Miller 
V.  Henlan,  1  P.  F.  Smith,  265;  Anthony  v.  Leftwich,  3  Rand.  2G8  ;  Smith  v.  Law- 
rence, L")  Mich.  490  ;  Hough  v.  Coughlan,  41  111.  130  ;  Norris  v.   Knox,   1  Pittsb. 

56  ;  [Frame  v.  Frame,  32  W.  Ya.  463.  ] 

(2)  Monro  v.  Taylor,  3  McN  &  G.  713,  723.     It  was  held  in  Shoi-tall  v.  Mitchell, 

57  111.  161,  that  if  a  vendee  fails  to  make  a  payment  at  a  time  stipulated  in  the 
contract,  merely  on  the  ground  of  an  ai)parent  advei-se  lien  or  incumbrance  upon 
the  premises,  he  is  thereby  precluded  from  maintaining  a  suit  against  the  vendor 
for  a  specific  performance,  however  important  a  cii-cumstance  such  lien  might  be 
as  affecting  a  suit  bi-ought  by  the  vendor  to  enforce  the  contract.  This  decision 
will  illustrate  the  tendency  of  the  Amei-ican  cases,  especially  the  more  modern 
ones,  to  give  force  to  stipulations  concerning  the  time  of  payment,  accoi-ding  to 
their  literal  import.  The  recent  ca,se  of  Hoyt  v.  Tuxbuiy,  70  111.  331,  is  also  an 
illuste'ation  of  the  text,  and  of  the  tendency  of  the  Ameiican  courts  to  treat  delay 
as  a  defense.  [See,  also,  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  W.  I.  &  N.  Ry.  Co.,  7S 
Iowa,  61.")  (delay  of  vendor  not  excused  by  defendant's  delay  in  signing  copies  of 
the  contract,  which  the  vendor  had  no  rca,son  for  reiiuiring).] 

(3)  lliiycs  V.  Caryll,  1  r>ro.  P.  C.  126  (Toml.  ed.)  ;  Spurrier  v.  Hancock,  4  Ve.s. 
667  ;  Pope  v.  Simpson,  .5  Ves.  145  ;  Main  v.  Melbourn,  4  Yes.  720  ;  Dni-ke  v.  Smyth, 
3  Jon.  &;Lat.  103;  [Meidling  ?'.  Ti-if:,  4S  N.  J.  Eq.  638;  see,  also,  E.shleman  r. 
Henriette  Yineyai-d  Co.,  97  Cnl.  GT'.).  ] 

4m 


TIMK    AS   AFFECTING    THE   RIGHT.  481 

advantage  from  the  very  beginning.(l)  And  if  the  vendor  fails  to 
perform  on  his  part,  at  the  stipulated  time,  and  the  contract  is 
inequitable,  or  the  price  exorbitant — or,  on  the  other  hand,  if  the 
vendee  fails  in  like  manner,  and  the  price  is  inadequate — in  either 
case  the  party  so  delaying  cannot  enforce  a  specific  performance  upon 
the  other.  (2) 

"When  delay  defeats  the  object  of  the  contract. 

Sec.  410.  In  addition  to  the  cases  of  loss  or  accident,  or  change  in 
value  resulting  from  or  accompanying  delay,  other  subsequent  evenr.s 
affecting  the  position  and  relations  of  the  ])arties,  and  rendering  it 
hard  and  inequitable  towards  the  defendant  to  enforce  the  agreement 
upon  him,  when  occurring  by  means  of  the  plaintiff's  delay — that  is, 
when  the  delay  has  furnished  the  opportunity  for  their  occurrence — • 
may  enable  the  defendant  to  defeat  the  plaintiff's  suit  for  a  specific 
performance. (3)  In  accordance  with  this  doctrine,  and  as  an  illustra- 
tion of  its  application,  if  a  contract  of  purchase  is  entered  into  by 
the  vendee  for  the  purpose  of  accomplishing  some  special  object,  or 
of  carrying  into  effect  some  particular  undertaking  in  which  he  is 
interested,  and  of  which  the  vendor  is  informed,  and  which  object  or 
undertaking  might,  in  all  reasonable  probability,  have  been  accom- 
plished if  the  vendor  had  fulfilled  the  terms  of  his  agreement  at  or 
near  to  the  time  stipulated  for  a  completion ;  but,  on  the  contrary,  the 
vendor  delays  so  long  in  performing,  or  offering  to  perform  his  part, 
that  the  purchaser  s  design  is  entirely  defeated,  and  the  object  wliich 
he  had  in  view  cannot  be  attained,  a  specific  performance  at  the 
vendor's  suit  would  be  refused.  The  same  would  be  triie  if  the  posi- 
tion of  the  parties  were  reversed ;  and  the  vendor  had  a  s[)ecial  purpose, 
which  the  delay  of  the  vendee — who  afterwards  sued  for  a  specific 
enforcement — has  prevented  from  being  accomplished.(4) 

(1)  Gee  V.  Pearce,  2  DeG.  &  Sm.  325 ;  Aberaman  Iron  "Works  v.  "Wickens,  L. 
R.  5  Eq.  485,  507,  508. 

(2)  Whorwood  v.  Simpson,  2  Vern.  186  ;  Lewis  v.  Loi-d  Lechmei-e,  10  Mo  I.  503. 

(3)  Peters  v.  Delaplaine,  49  N.  Y.  362;  Hubbell  v.  Van  Schoening-,  49  N.  Y. 
326  ;  Jackson  v.  Ligon,  3  Leigh,  161. 

(4)  Pratt  V.  Carroll,  8  Craiich,  471.  The  vendoi*  agreed  to  convey  certain  land 
lying  in  or  near  the  city  of  Washington,  and  his  object,  as  shown  by  other  terms  of 
the  contract,  was  to  draw  the  spi-eading  city  in  the  direction  of  the  land  in  ques- 
tion, and  thus  to  improve  the  value  of  his  other  adjacent  property  ;  and  with  this 
intent,  he  required  the  vendee  to  covenant,  and  the  vendee  did  covenant,  to  erect 
certain  buildings  on  the  land  within  a  sjiecified  time.  Vendee  failed  to  build  aa 
he  agreed.  The  vendee  suing  after  a  considerable  time,  the  court  held  that  the 
plaintiff's  failure  to  build  was  excused  by  defendant's  failure  to  convey  ;  but  still, 
as  dui-ing  the  lapse  of  time  the  city  had  largely  and  permanently  extended  in 
another  direction,  the  object  of  the  contract  was  wholly  defeated,  and  therefore 
the  plaintiff's  suit  was  dismissed. 

494 


482  SPECIFIC   I'hNFOh'MA.XCh'    OF   CO^TIiACTS. 

Delay  in  unilateral  contracts. 

Sec.  411.  As  already  st.attMl,  time  is  always  material,  even  if  not 
essential,  in  a  unilateral  contract — e.  g.,  an  agreement  to  give  an 
option  to  purchase,  or  to  renew  a  lease,  and  the  like — and  a  delay  by 
the  one  to  whom  the  offer  is  made,  although  not  great,  will  he  closely 
examined  by  the  court,  and  if  not  fully  explained  and  excused,  will 
prevent  such  party  from' enforcing  the  stipulation. (1)  And.  for  the 
same  reason,  the  delay  of  the  vendee  in  deciding  whei her  lie  will 
accept  or  reject  the  title  offered  him  by  the  vendor,  operates  unfairly 
and  unecpially,  and  must  be  justified,  because  the  vendee  can  enforce 
wliether  the  title  is  good  or  bad,  while  the  vendor  can  only  enforce 
wiKMi  the  title  is  good,  and  the  two  parties  do  not,  therefore,  stand 
upon  the  same  footing.  (2) 

Effect  of  notice  of  abandonment. 

Sec.  412.  Where  one  party,  even  without  any  just  or  sufficient 
reason  for  so  doing,  and  as  a  mere  act  of  arbitrary  will,  notifies  the 
other  that  he  shall  not  perform  the  contract — shall  treat  it  as  at  an 
end — acquiescence  by  the  party  notified  will  cut  off  the  latter's  right 
of  enforcement,  and  this  acquiescence  will  be  sufficiently  shown  by  a 
delay  in  commencing  a  suit  wdiich  would  otherwise  be  too  short  to 
prejudice  his  rights.(3)  In  applying  this  rule  two  year's  delay  after 
the  notice, (4)  and  one  years  delay,(5)  have  been  held  by  English 
courts  sufficient  to  prevent  a  decree.  This  rule,  liowever,  is  not 
enforced  when,  from  the  circumstances,  it  would  operate  unjustly.(6) 

(1)  Moote  V.  Scriven,  33  Mich.  .500  ;  Brooke  v.  Garrod,  27  L.  J.  Ch.  226.  [See 
ante,  §§  387,  388.] 

(2)  Spurrier  v.  Hancock,  4  Yes.  G07  ;  Lloyd  v.  Collett,  4  Bro.  C.  C.  469 ;  Har- 
ring-ton  v.  "Wheeler,  4  Ves.  686  ;  Guest  v.  Homfray,  5  Ves.  818  ;  Walker  v.  Jeffreys, 
1  Hare,  352  ;  Southcomb  v.  Bp.  of  Exeter,  6  Hare,  213 ;  Dorin  v.  Harvey,  15 
Sim.  49. 

(3)  Colby  v.  Gadsden,  34  Beav.  418,  per  Lord  Romilly,  M.  R  :  "  In  these  cases 
where  one  person  says,  '  I  will  have  nothing-  more  to  do  with  the  conti'at;t — I  put 
an  end  to  it ' — if  the  other  party  to  the  contract,  who  insists  on  its  being  cariied 
into  execution,  does  not  tile  his  bill  sjjeedily — a  time  which  is  not  very  accurately 
fixed,  though  the  cases  have  determined  that  it  must  not  exceed  a  year — \n'.  shall 
not  be  allowed  to  insist  that  the  contract  shall  be  can-ied  into  execution."  This 
rule  was  affirmed  and  applied  in  the  case  of  McDermid  v.  McGregor,  21  Minn.  Ill  ; 
but  the  limitation  was  very  properly  stated  that  the  vendee  to  whom  the  notice 
was  given,  and  whose  delay  should  amount  to  an  acquiescence  thei-ein,  must  not 
he  in  possession  of  the  land.  It  is  plain,  on  principle,  that  if  a  vendee  in  posses- 
sion was  thus  notified,  his  mere  delay  in  bnnging  suit  should  n(^t  have  much  effect 
as  an  acquiescence  if  he  still  retained  po.s.session  of  the  premises  ;  his  attinnative 
act  of  retaining  ])Ossession  would  dt^feat  any  inference  to  be  dei-ived  from  his 
negative  omission  to  bring  a  suit,  if  the  latter,  at  least,  was  not  continued  for  an 
unreasonable  time.     [See,  also,  Young-  v.  Young,  4.')  N.  .1.  E(j.  27.] 

(4)  Heaphy  v.  Hill,  2  S.  <t  S.  29. 

(5)  "Watson  v.  Reid,  1  Russ  &  My.  236  ;  Parkin  v.  Thorold,  16  Beav.  73. 

(6)  "Walker  v.  Jeffreys,  1  Hare,  353 ;  Jones  v.  Jones,  12  "Ves.  188. 

495 


tTml  as  affkcti.\g  the  hi  gut.  4b3 

Delay  in  furnishing  an  abstract  of  title. 

>Skc.  413.  ill  Eug-laiid,  on  account  of  the  highly  complicated  nature 
of  titles,  the  artiticial  modes  of  conveyancing,  and  the  absence  of  any 
general  system  of  registration,  certain  steps  or  proceedings  in  the 
course  of  completing  a  contract,  have  become  so  liruily  established  in 
practice  that  they  are  constantly  recognized  by  the  judicial  decisions 
as  almost  having  the  effect  of  legal  rules.  Among  these,  one  of  the 
most,  and  perhaps  the  most  important  step  in  the  whole  process  of 
completing  the  contract,  is  the  furnishing  an  abstract  of  his  title  by 
the  vendor  to  the  vendee,  in  order  that  the  latter  may  have  an  oppor- 
tunity of  inspecting  it  and  deciding  whether  he  will  accept  it.  In 
this  country  such  an  abstract  would  be  compiled  from  the  registrar's 
office,  and  is  sometimes,  though  inaccurately,  denominated  a  "  search." 
In  England  it  is  compiled  from  the  title-deeds  in  the  vendor's  pos- 
session, or  within  his  reach  ;  and  it  is  sometimes  stipulated  that  the 
abstract  is  to  commence  with  some  specified  person  as  owner,  or  with 
some  specified  conveyance  as  the  source  of  title,  and  that  the  vendee  is 
not  to  demand  anything  or  make  any  examination  prior,  in  point  of 
time,  to  this  assumed  source.  It  is  plain  that  this  must  be  the  first 
essential  step  after  the  contract,  for  until  the  vendee  is  furnished  witli 
an  abstract,  he  has,  and  can  have,  no  meaus  of  ascertaining  the  truth 
concerning  the  title,  and  no  basis  of  judging  w^hether  he  can,  w^ith 
safety,  accept  it  and  pay  the  purchase-price.  We  naturally,  therefore, 
find  that  the  English  decisions  have  laid  down  numerous  special  rules 
ccmcerning  the  abstract,  the  time  when  it  should  be  furnished,  the 
time  and  form  of  objections  based  upon  it,  waiver,  and  the  like.  In 
this  country  such  an  abstract  is  not,  by  any  means,  universally 
required  or  given  as  a  proceeding  in  the  completion  of  the  contract ; 
and  from  the  simplicity  of  our  titles,  and  the  short  period  of  time 
through  which  they  are  deduced,  it  is  often  quite  unnecessary ; 
indeed,  it  can  hardly  ever  be  considered  as  essential,  since,  as  the 
practice  of  registering  is  general,  the  vendee,  as  well  as  the  vendor, 
has  an  equally  easy  and  open  means  of  investigating  the  title,  and 
ascertaining  whether  it  is  perfect  or  defective.  Still,  the  furnishing 
an  abstract  of  the  title  by  the  vendor  is  by  no  means  unkown,  or  even 
unusual  in  the  United  States,  and  it  is  sometimes  required  by  a  pro- 
vision of  the  contract  itself.  Many  of  the  special  rules  concerning  the 
abstract,  which  have  been  established  by  the  English  decisions,  can- 
not be  said  to  prevail  in  their  exact  and  literal  form  in  this  country, 
because  the  circumstances  to  which  they  apply  do  not  exist ;  but  at 
the  same  time  the  underlying  doctrine  and  principle  of  these  rules 
must,  iindoubtedly,  control,  under  conditions  of  facts  and  circumstances, 
496 


484  SPEVJFIU  rKliFOHMA.WE    OF  CONTRACTS. 

ill  the  execution  of  our  contracts,  which  are  aualo^'-ous  to  tlio  fiirnisli- 
ing  tlie  abstract  in  England,  viz.,  in  tlie  proceedings  for  iiert'ectiiig 
the  vendor's  title,  and  the  negotiations  between  the  parties  tludiigli 
which  the  title  is  iinuUy  accejjted,  aTid  in  the  execution  and  deTnery 
of  the  deed  of  conveyance.  'JMie  rules  concerning  tlie  abstract  are, 
therefore,  given — as  settled  by  the  cases — un(hn-  the  assuni[itii)ii  that 
they  may  be  useful  to  the  Anierican  lawyer. 

iSec.  414.  At  kiw  the  vendor  must  have  his  abstract  and  title-deeds 
at  the  day  specified,  or  he  loses  all  rights  to  enforce  the  contract,  and 
is  liable  to  an  action  by  the  vendee  for  a  recovery  of  the  deposit. (1) 
But  in  equity  the  jjurchaser  must  act,  if  he  wishes  to  hold  the  vendor 
to  a  strict  compliance  in  respect  to  the  time.  The  duty  is  not  solely 
that  of  the  vendor  to  tender  the  abstract,  the  purchaser  nuist  demand 
it  on  the  day  specified,  if  any  day  is  ai)i)ointed  l)y  the  agreemeent, 
or  if  no  day  was  appointed,  then  he  must  demand  it  on  a  day  which 
will  leave  a  sufficient  period  for  the  completion  of  the  contract  before 
the  time  named  in  the  agreement ;  and  if  he  neglects  to  make  such 
demand,  he  thereby  waives  a  compliance  by  the  vendor  in  respect  to 
time,  and  cannot  object  at  a  delay  in  delivering  the  abstract.(2)  When 
a  day  is  named  in  the  agreement  for  a  delivery  of  the  abstract,  but 
the  vendor  fails  to  comply,  and  delivers  it  at  some  subsequent  time, 
yet  if  the  vendee  then  receives  it  without  objection,  he  tlu  roby  waives 
the  delay,  even  though  time  had  been  made  essential  in  respect  of 
such  delivery. (3) 

Sec.  415.  Where  the  contract  stipulated  that  the  abstract  should  be 
delivered  on  or  before  a  specified  day,  and  also  that  any  objections  to 
the  title  must  be  presented  within  a  certain  other  period,  and  added, 
that  time  with  respect  to  the  latter  provision  should  be  of  the  essence 

(1)  Ben-y  v.  Young,  2  Esp.  640,  n. 

(2)  Guest  V.  Homfray,  .^  Ves.  818,  823  (case  of  demand  on  the  day  appointed)  ; 
Jones  V.  Price,  3  Anstr.  924  (case  of  a  demand  where  no  day  was  appointed). 

(3)  Smith  V.  Burnani,  2  Anstr.  527 ;  Pincke  V.  Curteis,  4  Bi-o.  C.  C.  329  ;  Paine 
V.  Meller,  6  Ves.  349  ;  in  the  leading-  case  of  Seton  t'.  Shide,  7  Ves.  2G.'),  thei-e  was  a 
notice  by  vendee  that  if  title  was  not  made  out  and  possession  given  by  the  day 
named  in  the  contract  for  the  payment  and  conveyance  and  tinal  completion,  he 
shauld  claim  the  contract  to  be  rescinded,  and  should  insist  upon  a  return  of  his 
dejK)sit;  in  the  face  of  this  notice,  the  vendor  delayed  in  delivering  his  aV)stract 
until  3  very  few  days  before  the  day  appointed,  as  above  stated,  for  the  Hnal  com- 
pletion, there  not  being  a  sufficient  interval  left  for  the  vendee  to  examine  and 
decide  upon  the  title  (it  was  said  on  the  argument  that  there  wa«  not  even  time 
to  read  through  the  abstract);  yet,  as  the  vendee  received  the  al)sti:act  without 
making  any  objections,  it  was  held  that  he  had  waived  time,  and  could  not  insist 
upon  the  delay  as  a  defense,  and  a  specific  jierformance  was  decreed  against  him. 

•497 


TIME   AS  AFFECTING    THE    lUdllT.  485 

of  the  contract,  a  failure  of  the  vendor  to  deliv^er  his  abstract  within 
the  time  appointed  for  that  purpose,  relieves  the  purchaser  from  the 
necessity  of  making'- his  objections  within  the  prescribed  period  and 
excuses  his  deUiy,  notwithstanding  the  stipulation  as  to  time  being 
essential.  How  hmg  a  delay  would  be  permitted  in  such  a  case — or, 
in  other  words,  the  time  within  which  ol)jections  will  be  considered 
as  waived — will  depend  upon  the  general  principles  of  the  court  and 
the  acts  of  the  parties. (1) 

Notice  of  abandonment. 

Sec.  416.  It  is  also  a  settled  rule  in  England,  that  where  the  ven- 
dor has  done  nothing  whatever  towards  completing  the  contract,  and 
immediately  upon  the  anival  and  elapsing  of  the  day  stipulated  for 
the  completion,  the  vendee  has  given  notice  that  he  shall  treat  the 
matter  as  at  an  end,  and  shall  not  perform  on  his  own  part,  and  has 
demanded  a  return  of  his  deposit,  a  court  of  equity  will  not  sustain  a 
suit  subsequently  brought  by  the  vendor  for  a  specific  enforcement, 
nor  interfere  by  injunction  on  his  behalf  to  restrain  an  action  to  recover 
back  the  deposit)  money  brought  by  the  vendee. (2)  But  if  the  vendor 
has  actually  taken  steps,  and  in  good  faith  attempted  to  make  out 
his  title,  and  is  not  chargeable  wdth  such  an  unreasonable  or  unneces- 
sary delay  as  would  constitute  laches  or  negligence,  such  a  notice  by 
the  vendee,  and  demand  of  his  deposit,  will  not  have  the  effect  of 
cutting  off  the  vendor's  remedial  rights, (3) 

Delay  pending  a  negotiation. 

Sec.  417.  The  delay  in  completing  which  arises  in  consequence  of 
and  during  a  pending  bona  fide  negotiation  between  the  parties  con- 

(1)  Upperton  v.  Nickolson,  L.  R.  6  Ch.  4B(J ;  reversing  S.  C,  L.  R.  10  Eq.  228. 

(2)  Lloyd  V.  CoUett,  4  Bro.  C.  C.  469  ;  4  Ves.  689  ;  Omerod  v.  Hardman,  5 
Ves.  737;  Warde  v.  Jeffery,  4  Price,  294. 

(3)  Fordyce  v.  Ford,  4  Bro.  C.  C.  495  ;  Radcliffe  v.  Warring-ton,  12  Ves.  326. 
As  illustrations,  it  was  held  in  Dyer  v.  Hardgrave,  10  Ves.  505,  that  although  the 
vendee  had  given  the  notice  described  in  the  text,  and  although  after  the  day 
stipulated  for  completing  the  contract,  some  time  elapsed  before  the  vendor  had 
finished  the  necessary  repairs  upon  the  house,  which  had  been  described  as  being 
in  good  repair,  yet  the  vendee  should  be  compelled  to  accept  the  house  and  per- 
form, unless  he  showed  that  he  wanted  the  house  for  his  own  residence  before 
the  time  when  the  repairs  were  completed  ;  and  in  Hall  v.  Smith.  14  Ves.  426, 
when  the  same  notice  was  given,  and  there  was  a  considei-able  time  (several 
months)  after  the  day  fixed  for  completion  befoi-e  a  former  lease  of  the  house  in 
question  ran  out  so  that  possession  could  be  given  to  the  vendee,  although  the 
contract  stipulated  that  jiossession  should  be  given  at  the  day  specified— several 
months  earliei-— yet  it  was  held,  that  the  vendee  had  no  defense,  unless  he  wanted 
the  housje  for  his  own  i-esidence  befm-e  the  lease  of  it  ran  out,  and,  therefore,  before 
the  possession  was  actually  given  him.  The  reason  of  the  limitation  in  these  two 
«ases  is,  that  in  contracts  for  the  sale  or  leasing  of  houses  for  the  vendee's  own 
residence,  time  is  essential,  and  not  simply  material. 

498 


486  sPKciF/r  I'Kn FORMA ycE  of  contracts. 

oerning-  questions  material  to  their  rights,  will  not  constitute  laches, 
and  will  not,  therefore,  prevent  a  decree  of  specific  performance  in 
favor  of  either,  even  though  the  negotiation  carried  on  was  to  be 
without  prejudice  to  a  notice  given  l)y  the  other  party  that  he  should 
treat  the  contract  as  at  an  end.  The  fact  of  going  on  with  such  a 
negotiation  seems  to  be  ipso  fudo  a  waiver  of  such  a  notice,  and  no 
protest  or  declaration  that  it  is  to  be  without  iircjudicc,  cuu  avail  to 
keep  the  notice  alive  and  etl'ectual.(l)  'If,  however,  the  matter  in 
dispute  is  not  the  one  which  actually  causes  the  delay,  the  })eudency 
of  a  negotiation  concerning  it  will  not  affect  the  question  of  delay,  and 
whether  it  amounts  to  fatal  laches  or  not,  must  be  decided  upon  other 
considerations  independently  of  the  negotiations. (2) 

Waiver  of  delay. 

ISec.  418.  Several  particular  instances  of  waiver  have  already  been 
given,  but  the  doctrine  may  be  stated  in  the  most  general  terms, 
that,  whether  time  is  originally  essential  or  is  made  so  by  notice,  or 
is  simply  material,  all  objections  to  a  delay,  either  in  finally  complet- 
ing or  in  doing  any  particular  act,  or  to  a  failure  to  comply  with  the 
stipulations  concerning  time,  will  be  waived  by  conduct  on  the  part 
of  the  one  who  could  otherwise  raise  them,  which  shows  with  rea- 
sonable certainty  that  he  could  not  consistently  have  intended  to 
insist  upon  the  objection,  or  that  he  did  intend  to  treat  the  contract  as 
still  subsisting,  notwithstanding  the  delay.(3)    And,  of  course,  a  waiver 

(1)  Southcomb  v.  B'p  of  Exeter,  6  Hare,  213. 

(2)  Gee  v.  Pearse,  2  DeG.  &  S.  325.  In  this  case  the  vendee's  (who  was  phiintiff ) 
jiecuniary  inability  to  jiay  at  tlie  time  caused  the  delay,  and  the  speciti'-,  performance 
which  he  sought  was  therefore  i-efused,  although  there  was  a  dispute  and  a  nego- 
tiation touching  the  title  and  a  valuation  of  the  property.  It  is  also  held  in  Eng- 
land, that  the  vendee's  permitting  the  deposit  money  to  be  retained  by  the  vendor 
during  the  interval  between  a  notice  given  by  the  vendee,  that  he  should  treat 
the  contract  as  ended,  and  the  tiling  the  bill  for  a  specific  performance  will  not 
atfect  the  question  whether  a  delay  is  laches.  Watson  v.  Reid,  1  Iluss.  &  My.  236  ; 
t^outhcomb  v.  B'p  of  Exeter,  6  Hare,  213.  Nor  would  the  vendee's  continuing  in 
})OSsession  of  the  premises,  when  it  is  done  by  virtue  of  a  special  ari-angement 
therefor,  aflect  the  questioii  of  laches.     Southcomb  v.  B'p  of  Exeter,  6  Hai-e,  213. 

(3)  King  V.  Wilson.  6  Beav.  124  ;  Rector  v.  Price,  1  Mo.  373.  Brassell  V. 
McLemore,  50  Ala.  476 ;  Grigg  v.  Landis,  6  C.  E.  Green,  494 ;  [Quinn  v.  Olson, 
34  Minn.  422 ;  Day  v.  Cohn,  65  Cal.  508  ;  Benson  v.  Cutler,  53  Wis.  107 ;  Day 
V.  Hunt,  112  N.  Y.  191  (delay  excused  by  negotiations  between  the  parties)  ] 
The  doctrine  is  general  that  a  party  who  seeks  to  rescind,  avoid,  or 
abandon  a  contract  on  the  ground  of  fraud,  mistake,  defect  of  title,  and 
the  like,  must  do  so  with  })roniptness  and  diligence  as  soon  a.s  the 
facts  constituting  the  objection  are  discovered  by  him  ;  if  a  vendee  re- 
tains possession  and  enjoyment  of  the  pi-emises  after  notice;  of  the  facta 
giving  him  the  right  to  rescind  or  abamlon,  he  certainly  thei-eby  waives  tha 
objection  and  his  right  to  avail  himself  of  it.  See  Garrett  v.  Lynch,  45  Ala. 
204;  Foley  v.  Crow,  37  Md.  51;  Canq)b.'ll  v.  Medbury,  5Bi.ss..33;  lawyer  r. 
Sledge,  55  Geo.  152.  When  a  vendor  in  an  action  for  a  specific  performance 
relies  iqion  the  vendee's  waiver  of  an  objection  to  the  title,  he  must  aver  the 

499 


TIME   AS  AFFECTING    'IHE    RIGHT.  487 

may  always  be  made  in  express  terms.  With  respect  to  delay  in 
com})letiii^'-  by  the  vendor.  If  the  title  is  not  yet  perfect,  and  the  day 
for  completion  passes,  but  the  vendee  continues  the  negotiation  or 
dealing  concerning  it,  he  thereby  waives  the  delay  ;(i)  and  the  accept- 
ance of  the  abstract,  without  objection  after  the  time,  amounts  to  a 
waiver,  even  though  the  delivery  at  such  a  time  has  been  made  essen- 
tial.(2)  Although  the  party  has  previously  given  a  notice  that  he  will 
treat  the  contract  as  ended,  this  will  not  prevent  such  conduct  on  his 
part  from  amounting  to  a  waiver  both  of  the  objection  to  delay  and  of 
the  notice. (3)  It  has  also  been  held  that  a  party  waived  the  right  to 
claim  that  time  was  essential  in  completing  the  contract,  and  to  object 
to  a  delay  therein,  by  demanding  that  the  other  party  should  go  on 
and  complete  after  the  time  stipulated  therefor  had  expired ;(4)  and 
by  a  written  extension  of  the  time  contained  in  a  letter. (5) 

Sec.  419.  With  respect  to  delays  by  the  purchaser.  Objections  to  a 
failure  by  the  vendee  to  make  the  payments  at  the  time  required,  are 
also  waived  by  the  vendor's  conduct  which  recognizes  the  contract  and 
the  duty  to  pay  as  still  subsisting. (6)     And  when  the  vendee  is  origi- 

waiver  in  his  pleadingf  by  suitable  allegations,  so  that  the  fact  may  be  put  in  issue, 
or  otherwise  no  evidence  of  the  waiver  will  be  admissible.  Page  v.  Greeley,  TS- 
UI. 400. 

(1)  Pincke  v.  Curteis,  4  Bro.  C.  C.  329. 

(2)  Seton  v.  Slade,  7  Ves.  265  ;  Smith  v.  Burnam,  2  Anstr.  527  ;  Pincke  v.  Cur- 
teis, 4  Bro.  C.  C.  329  ;  Paine  v.  Meller,  6  Ves.  349. 

(3)  Hipwell  V.  Knight,  1  Y.  &  C.  Ex.  401  ;  Southcomb  v.  B'p  of  Exeter,  6  Hare,. 
213. 

(4)  Pegg  V.  Wisden,  16  Beav.  239. 

(5)  Parkin  v.  Thorold,  16  Beav.  59.  69  ;  Wood  v.  Bernal,  19  Ves.  220.  It  has 
been  said,  however,  that  when  a  vendee  protests  against  a  delay,  and  goes  on 
negotiating  or  dealing  about  the  title  under  the  protest,  he  does  not  thereby 
waive  his  right  to  object.  Magennis  v.  Fallon,  2  Moll.  561,  576.  But  this  cannot 
be  reconciled  with  the  rule  laid  down  in  the  preceding  paragraph  (§  417),  nor 
with  the  cases  there  cited  ;  and  is  contrary  to  the  principle  which  underlies  all 
these  rules.  Its  correctness  is,  therefore,  more  than  doubtful.  See,  to  the  same 
effect,  Sug.  on  Vendors,  p.  291. 

(6)  In  Hudson  v.  Bartram,  3  Mad.  440,  the  contract  was  for  the  assignment  of 
a  lease  by  the  lessee ;  he  had  claimed  that  the  assignment  was  forfeited  by  the 
assignee's  failure  to  pay  a  part  of  the  price  at  the  stipulated  time  ;  but  he  after- 
wards got  the  assignee  to  pay  the  rent  to  the  superior  landlord,  and  by  this  act 
he  was  held  to  have  waived  the  right  to  claim  any  forfeiture,  because  it  was 
wholly  inconsistent  with  his  claim  that  the  contract  had  been  ended  ;  and  in  Ex 
parte  Gardner  4  Y.  &  C.  Ex.  503,  it  was  stipulated  by  the  parties,  that  if  the  bal- 
ance of  the  purchase-price  was  not  paid  at  a  day  named,  the  contract  of  sale 
should  be  ended— void ;  the  vendee  did  not  pay,  but  the  vendor,  nevertheless, 
Allowed  him  to  remain  in  possession  of  the  premises,  and  took  from  him  a  warrant 
of  attorney  to  confess  judgment  in   ejectment,  and  by  these  acts  the  vendor  waa. 

500 


488  SPECIFIC  I'KKFORMAycK   OF  CONTRACTS. 

iially  bound  to  pres^enthis  objections  to  tlie  title  within  a  certain  time, 
the  objection  to  his  faihire  in  tliis  respect  will  be  waived  by  the  ven- 
dor's subsequent  conduct ;  for  example,  by  a  subsequent  correspon- 
dence concerning  the  title  ;(1)  by  a  subseijuent  rtMiewal  of  the 
negotiation  concerning  the  price  ;(2)  and  by  the  ven(h)r"s  own  failure 
to  deliver  the  abstract  at  the  time  appointed. (Il)  A  waiv(u-  of  the 
condition  or  stipulaTJon  that  an  act  is  to  be  done  iit  or  within  some 
specified  time,  is  not  a  waiver  of  the  act  itself — that  is,  of  tlie 
duty  growing  out  of  tlie  contract  to  perform  the  act ;  mere  waiver  of 
the  particular  time  leaves  the  party  bound  to  do  the  act  at  smne  time, 
and  generally  within  a  reasonable  time  depending  upon  all  the  cir- 
cumstances of  the  case. (4) 

Sec.  420.  It  is  [)ossible,  and  even  probable,  that  some  of  these  special 
rules,  growing  out  of  the  peculiar  methods  of  conveyancing  and  forms 
of  contract  customary  in  England,  and  from  the  condition  of  the 
English  law  concerning  titles  and  estates,  will  not  be  exactly  followed 
by  the  American  courts,  since  the  same  circumstances  can  hardly  ever 
arise  in  this  country.  Still,  the  general  doctrines  concerning  time, 
delay,  laches,  and  waiver,  are  as  firmly  established  by  the  American 
decisions  as  by  those  of  the  English  and  Irish  courts,  and  the  princi- 
ples contained  in  the  foregoing  special  rules  would  be  found  applicable 
to  analogous  facts  and  circumstances  which  may  exist  in  connection 
with  our  simple  forms  of  proceeding  and  titles  to  real  estate. (5) 

held  to  have  waived  the  forfeiture  resulting'  from  the  vendee's  breach  of  the  stipu- 
lation. Brasell  v.  McLemore,  50  Ala.  476,  acceptance  by  vendor  of  a  payment 
made  after  the  day  prescribed ;  Grig-g  v.  Landis,  6  C.  E.  Green,  494,  acceptance 
"by  the  vendor  of  the  balance  of  the  price  after  a  condition  broken ;  [  Hui-st  v.. 
Thompson,  73  Ala.  158 ;  Lumber  Co.  v.  Horrigan,  36  Kan.  387 ;  Camp  v.  "Wig- 
gins, 72  Iowa,  643 ;  Paulman  v.  Cheney,  18  Neb.  392 ;  Schloetterer  v.  Wagner 
(N.  J.),  21  Atl.  Rep.  863.] 

(1)  Cutts  V.  Thodey,  13  Sim.  206  ;  [Lancaster  v.  Roberts  (111.),  33  N.  E.  Rep.  27.1 

(2)  Eads  V.  Williams,  4  DeCx.  M.  &  G.  674. 

(3)  Upperton  v.  Nickolson,  L.  R.  6  Ch.  436. 

(4)  See  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.  83. 

(5)  Although  the  American  courts  are  inclined  to  regard  time  as  essential,  and 
to  require  promptness  in  performance  to  a  much  greater  extent  than  is  done  in 
England,  still,  if  the  plaintiff  has  not  been  guilty  of  such  negligent  delay  as 
amounts  to  laches,  and  compensation  is  pos.sible  ;  or,  as  has  ali-eady  been  stated, 
if  both  parties  have  been  in  default  with  respect  to  the  time  of  performance,  the 
contract  will  be  specifically  enforced.  Snowman  v.  Hai-ford,  55  Me.  197  ;  Pritchard 
V.  Todd,  38  Conn.  413 ;  Delevan  v.  Duncan,  49  N.  Y.  485  ;  Willi.ston  v.  Williston, 
41  Barb.  635  ;  Ashmore  v.  Evans,  3  Stockt.  151  ;  De  Camp  v.  Crane,  4  C.  E.  Green, 
166;  Spalding  V.  Alexander,  6  Bush.  160;  Richmond  v.  Robinson,  12  Mich.  193; 
Moi-ris  V,  Hoyt,  11  Mich.  9  ;  Mix  v.  Beach,  46  111.  311 ;  Laverty  v.  Hall's  Adinr.. 
19  lown.  526  ;  Farris  v.  Bennett,  26  Tex.  568.  It  is  impossible  to  reconcile  all  tha 
American  decisions  involving  the  question  as  to  time,  or  the  principles  upon  which 
they  are  based.     In  some  of  the  states  the  equity  doctrine  with  resjxjct  to  time 

601 


riMt:  AS  AFFECTIAG    THi<:    HIGHV.  485 

When  the  delay  is  caused  by  a  defect  in  the  vendor's  title,  or 

by  a  diflBculty  in  perfecting  the  title. 
■  SiiC.  421.  2.  If  the  delay  arises  from  a  defect  in  his  title, 
which  the  vendor  finally  cures,  or  from  a  difficulty  in  making- 
the  title  good — such  as  the  vendee  has  a  riglit  to  demand — for 
example,  in  obtaining  proper  evidence,  clearing  off'  incumbrances, 
getting  in  outstanding  estates,  and  the  like ;  and  time  is  not  an 
essential  element  of  the  contract,  either  from  express  stipulation,  or 
from  the  nature  of  the  subject-matter  or  object  of  the  agreement — 
then  the  delay  thus  occasioned,  or  the  lapse  of  time  while  the  vendor 
is  engaged  in  making  his  title  good,  will  not  prevent  him  from  obtain- 
ing a  decree  of  specific  performance  against  the  purchaser.  The 
doctrines  of  the  equity  courts  are  satisfied  if  the  vendor  is  able  to 
procure  and  give  a  good  title  at  the  time  of  the  decree,  even  though 
he  could  not  do  so  at  the  time  of  commencing  his  suit.(l)     But  a  court 

seems  to  be  virtually  abandoned,  or,  at  least,  disregarded,  and  the  same  exact 
compliance  wi'.h  the  j^rovisions  of  the  contract  is  demanded  from  the  plaintiff  in  a 
suit  for  specific  performance,  which  is  i-equisite  to  maintain  an  action  at  law  for  a 
breach  of  the  agreement.  In  other  states  the  eiiuity  doctrine  is  admitted  and 
followed,  but  with  limitations  and  restrictions  vmknown  to  the  English  tribimals. 
(1)  Langford  v.  Pitt,  2  P.  AYms.  630;  Jenkins  v  Hiles,  (5  Ves.  646;  AVynn  v. 
Morgan.  7  Yes.  202 ;  Eyston  v.  Simonds,  1  Y.  &  C.  C.  C.  608  ;  Salisbury  v. 
Hatcher,  2  Y.  &  C.  C.  C.  54  ;  Sidebotham  v.  Barrington,  3  Beav.  524  ;  4  Beav.  110  ; 
5  Beav.  261  ;  Chamberlain  ■».  Lee,  10  Sim.  444  ;  Phillipson  v.  Gibbon,  L.  R.  6  Ch. 
428.  In  the  leading  case,  Langford  v.  Pitt,  supra,  the  vendee  urged  in  defense 
that  the  plaintiff,  on  his  own  showing,  had  no  title  when  he  made  the  conti-act  to 
sell.  Sir  Joseph  Jekyll,  M.  R.,  thus  stated  the  doctrine  :  "  It  is  sufficient,  if  the 
party  entering  into  articles  to  sell,  has  a  good  title  at  the  time  of  the  decree,  the 
direction  of  the  court  (?.  e.,  to  the  Master)  being  in  all  these  cases  to  inquire 
whether  the  seller  can,  not  whether  he  could  make  a  title  at  the  time  of  executing 
the  agreement."  The  same  doctrine  is  fully  establishetl  by  the  American  courts  : 
Jones  V.  Robbins,  29  Me.  b51  ;  Dressel  v.  Jordan,  104  Mass.  407  ;  Old  Colony  R.  R. 
V.  Evans,  6  Gray,  25  ;  Richmond  v.  Gray,  3  Allen,  25 ;  Beebe  v.  Dowd,  22  Barb. 
255  ;  Dutch  Church  v.  West,  7  Paige,  77  ;  Brown  it.  Haff,  5  Paige,  235  ;  Winne  v. 
Reynolds,  6  Paige,  407  ;  Allerton  v  Johnson,  3  Sandf.  Ch.  73  ;  Seymour  v.  Delan- 
cey,  3  Cow.  445 ;  Ley  v.  Auber,  3  Watts,  367  ;  Tiernan  i\  Roland,  3  Harris,  429, 
436;  Wilson  v.  Tappan,  6  Hammond,  172;  Cotton  v.  Ward,  3  Monr.  313;  Luckett 
V.  Williamson,  37  Mo.  388  ;  Hepburn  v.  Dunlop,  1  Wheat.  179  ;  Sharp  v.  Trimmer, 
9  C.  E.  Green,  422;  Christian  v.  Cabell,  22  Graft.  82;  [Isaacs  v.  Skrainka,  95 
Mo.  517 ;  Hobson  v.  Buchanan,  96  N.  C.  444 ;  Dodson  v.  Hays,  29  W.  Va.  577 ;; 
Oaky  V.  Cook,  41  N.  J.  Eq.  350;  Co-operative  Society  v.  Hardy,  31  N.  J.  E*]. 
442 ;  Ci-owell  v.  Denlev,  19  Bradw.  500  ;  Sanford  v.  Cloud,  17  Ela,  532  ;  Smith  r, 
Cansler,  83  Kv.  367 ;  Logan  v.  Bull,  78  Kv.  607 ;  Buford  v.  Guthrie,  14  Bui^h, 
677  ;  Rader  ti.Neale,  13  W.  Va  373.  In  People  v.  Ojien  Board,  etc.  Co..  92  N.  Y. 
98,  it  was  held  that  the  court  had  no  power  to  direct  a  comjiletion  of  the  purchase 
conditioned  on  the  seller's  producing  sufficient  evidence  to  establish  the  validity 
of  the  title  in  a  further  proceeding  to  be  instituted  by  him,  as  the  period  of  jier- 
foi'mance  would  thus  be  left  entirely  uncertain  and  indefinite.]  The  doctrine  of  the 
text  is,  however,  by  some  of  the  American  decisions,  limited  in  the  following- 
manner  :  Where  the  vendor  d^d  not,  at  the  time,  own  what  he  agreed  to  sell,  and 
had  no  reasonable  expectation  or  jirobabilify  of  becoming  owner — no  interest 
which  might  develoj}  into  a  complete  ownei-.shi]i — and  the  contract  was  absolute  in 
its  form,  and  did  not  in  its  terms  show  that  the  vendor  was  to  buy  or  otherwise 
acquire  the  premises,  and  then  convey  them  to  the  purchtiser,  a  court  of  equity, 
it  is  said,  will  not  sustain  his  suit  for  a  sj)ecific  perfonnance,  since  the  contract  is 
unequal  in  its  very  inception.  Hurlev  ?'.  Brown,  98  Mass.  545,  547;  Tiernan  v. 
Roland,  3  Harris,  429,  436 ;  Ley  v.  Huber,  3  Watts,  367 ;  Pipkin  v.  James,  1 
502 


490  SPECIFIC  vKi^FomiASCK  OF  cnyrii'ACTs. 

of  equity  will  not  extend  this  favor  to  a  vendor  who  has  not  done  all 
that  was  in  his  power  to  make  out  a  ^'•ood  title  within  a  vrasonable 
time;(l)  nor  to  one  who  has  fraudulently  concealed  i'loni  the  pur- 
chaser the  defect  in  his  title  which  causes  the  delay.(2) 

Time  -within  -which  vendor  may  perfect  his  title. 

Sec.  422.  According  to  the  ordinary  jiractico  of  the  court  the  title 
ought,  as  a  general  rule,  to  be  perftH'tcd  at  the  time  of  the  master's 
report,  made  in  pursuance  of  the  inquiry  directed  as  to  the  title. (:i) 
This,  however,  is  rather  a  rule  of  practice  than  of  doctrine,  and  is  not 
absolutely  essential ;  for  the  vendee,  defendant,  will  not,  in  all  cases, 
be  allowed  to  defeat  tlie  decree  and  thus  avoid  a  specific  performance, 
because  the  title  cannot  be  completely  made  out  at  the  time  of  the 
report ;  but  it  must  clearly  appear  that  it  will  be  certainly  and 
speedily  perfected. (4)  Where  there  is  an  outstanding  title  in  sonu^ 
other  person  w'hich  might  have  prevented  the  vendor  from  perfecting 
his  ow^n  title,  and  might  have  been  a  valid  objection  to  a  decree  in  his 
favor,  and  the  purchaser  buys  up  or  otherwise  acquires  this  outstand- 
ing interest,  he  cannot  rely  upon  the  defect  in  the  vendor's  title  as  a 
sufficient  ground  for  preventing  the  vendor's  relief,  since  he  has  in  his 
own  hands  the  means  of  making  it  good.(5)     Where  the  vendor  sues 

Humph.  32.1,  328.  This  exception  does  not  apply  to  a  case  where  the  contract 
itself  shows,  or  the  vendee  knows,  that  the  vendor  is  not  owner,  but  inlands  to 
acquire  the  ownership,  and  then  convey  the  land  in  pursuance  of  the  agreement ; 
for  such  a  contract  will  be  enforced  against  the  vendee.  Dresell  ?;.  Jordan,  104 
Mass.  407  ;  Old  Colony  R.  R.  v.  Evans.  6  Gray,  25.  Nor  does  the  cxceiition  apply 
when  the  vendee  knows  the  title  to  be  defective,  or  where  he  simply  contracts  to 
purchase  whatever  interest  the  vendor  owns,  and  thus  assumes  the  ri.sk  of  the 
title  being  defective.  Brashier  i\  Gratz,  6  Wheat.  528.  And  one  who  only  holds 
the  equitable  estate  under  a  contract  for  the  land,  may  become  a  vendor  and  may 
enforce  his  agreement  to  convey,  although  he  cannot  complete  without  getting  iu 
the  outstanding  legal  titles.  Tiernan  v.  Roland,  3  Harris,  4-20  ;  Ley  v.  Hul)er,  3 
Watts.  307. 

(1)  Kingti.  Hamilton,  4  Pet.  311;  Tiernan  v.  Roland,  3  Harri.s  429;  IIuI.t  r. 
Gray,  10  Md.  282,'28i5;    Grundy  v.  Ford's  Ex'ors,  Littell's  Scl.  Cas.  129. 

(2)  Christian  v.  Cabell,  22  Gratt.  82. 

(3)  Cowgill  V.  Lord  Oxmantown,  3  Y.  &  C.  Ex.  377  ;  Kirwan  v.  151akt>,  citrd  iu 
2  Moll.  581,  582. 

(4)  Coffin  V.  Cooper,  14  Ves.  205;  Lord  Stourton  v.  Sir  Thomas  Meers,  1  1*. 
Wms.  146  ;  Clay  v.  Ruffoi-d,  5  DeG.  &  Sm.  784  ;  Devenish  v.  Brown,  2(3  L.  J.  (N. 
S.)Ch.  23.  In  Coffin  t\  Cooper,  siq^ra,  it  was  held,  that  the  vendee  could  not 
insist  on  being  discharged  from  the  contract,  the  veiulor  having  obtained  a  good 
title  thi'ough  an  act  of  parliament,  although  more  than  a  month  after  1ht>  master's 
report.  Lord  Eldon  said  :  "Where  the  master's  report  is,  that  tlie  vendor,  get- 
ting in  a  term,  or  getting  administration,  etc.,  will  have  a  title,  the  court  will  jiut 
him  under  terms  to  pi-ocure  that  speedily." 

(.5)  See  Miu-rell  r.  Goodyear,  1  DeG.  F.  k  J.  -i:>2.  and  other  cases  cited  niifi; 
§  349. 

508 


TIME   AS   AFFKCTISG    THK   RKHIT.  491 

for  a  specific  performance,  and  does  not  make  out  a  good  title  until 
after  the  commencement  of  liis  suit,  lie  may,  according-  to  the  practice 
of  the  English  court  of  chancery,  be  liable  to  a  jjortion  of  the  costs. (1) 
Sec.  423.  The  general  doctrines  of  the  court  with  respect  to  delay 
in  completing  by  the  vendor,  and  especially  the  rule  which  permits 
him  to  make  out  his  title  after  the  time  specified  in  the  contract,  and 
still  enforce  a  performance  upon  the  purchaser,  being  opposed  to  the 
actual  and  literal  meaiung  of  the  agreement,  and  being  sometimes 
capable  of  working  unjustly,  or  at  least  harshly,  are  never,  at  the 
present  day,  extended  by  implication  beyond  the  limits  which  have 
already  been  firmly  established,  but  are  carefully  restricted  to  cases 
and  circumstances  which  present  the  same  class  of  questions  as  those 
which  have  already  been  adjudicated.  For  this  reason  the  vendor, 
whose  title  is  not  perfected  at  the  time  of  commencing  his  suit,  can- 
not force  a  performance  upon  the  vendee,  and  compel  him  to  accept, 
whenever  it  is  necessary,  in  order  to  complete  the  matter,  that  a  new 
suit  should  be  brought,  or  whenever  an  account  of  debts  must  be  taken 
in  order  to  ascertain  and  fix  the  rights  of  the  parties  to  the  existing 
suit.  (2) 

Waiver  of  delay  by  vendee. 

Sec.  424.  There  are  many  modes,  however,  in  which  the  vendee, 
by  his  acts  or  omissions,  will  waive  all  right  to  object  to  the  vendor's 
delay  in  making  out  a  good  title,  and  when  the  delay  is  thus  waived 
the  vendee  will  be  compelled  to  accept  the  title,  and  complete  the 
contract  notwithstanding  the  lapse  of  time.  He  thus  waives  all  objec- 
tion to  the  delay,  if  he  knows  of  the  defects  at  the  time  of  making 

(1 )  This  question  -would  doubtless  be  regulated  by  the  system  of  procedure 
prevailing-  in  each  state.  By  the  practice  of  the  English  chancery,  such  a  vendor 
would,  when  the  fault  or  misfortune  was  his  own,  be  oblig-ed  to  pay  all  the  costs 
up  to  the  time  when  he  showed  a  good  title.  Long  v.  Collier,  4  Russ.  269  ; 
Scoones  v.  Morrell,  1  Beav.  251  ;  "Wilkinson  v.  Hartley,  15  Beav.  183.  But  there 
are  exceptions  to  this  rule,  and  the  vendor  would  not  be  charged  with  costs, 
although  his  title  was  not  perfected  until  after  filing  his  bill,  where  the  suit  was 
made  necessary  solely  by  the  vendee's  conduct ;  as,  for  example,  where  the 
vendee  did  not  question  the  title,  but  disputed  the  vendor's  authority  to  sell 
(Peei"S  V.  Sneyd,  17  Beav.  151) ;  or  where  the  vendee  did  not  make  any  requisi- 
tion— that  is,  objections  and  demauds  for  explanations,  further  proof,  removal  of 
incumbrances,  and  the  like — until  after  the  suit  was  commenced,  or  where  the 
vendee  had,  without  any  good  ground,  claimed  compensation.  Lyle  v.  Earl  of 
Yarborough,  Joints.  70.  But  see,  on  the  question  of  plaintiff's  liability  for  costs, 
Phillipson  v.  Gibbon,  L.  R.  6  Ch.  428. 

(2)  Lechmere  v.  Brasiei-,  2  J.  &  W.  289  ;  Dalby  v.  Pulleii,  3  Rim.  29  ;  1  Russ.  & 
My.  296  ;  Coster  v.  Turnor,  1  Russ.  &  My.  311  ;  Magennis  v.  Fallon,  2  Moll.  566, 
580  ;  Chamberlain  v.  Lee,  10  Sim.  444 ;  Blacklow  v.  Laws,  2  Hare,  40  ;  Eraser  v. 
Wood,  8  Beav.  339. 

504 


492  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

the  agi-eement,  and  thus  has  notice  that  a  delay  in  perfecting'-  tlie 
title  is  probable,  or  if  he  accepts,  without  objection,  the  abstract 
which  is  delivered  to  him  after  the  stipulated  day  ;  (1)  or  if  he  goes 
on  with  the  negotiation  or  dealing  concerning  the  title,  or  con- 
cerning the  completion  of  the  contract  generally,  after  the  time 
which  had  been  prescribed  for  the  completion,  even  though  it 
will  require  a  much  longer  time  before  the  title  can  be  perfected, 
and  the  transaction  consummated. (2)  If  a  purchaser,  at  the  recpiest 
of  the  vendor,  extends  the  time  of  completing  the  contract  for  a 
definite  period,  he  does  not  thereby  waive  his  right  to  object  to  any 
additional  amount  of  delay;  and  if  the  vendor  has  not  made  good  his 
title  so  as  to  be  ready  at  the  end  of  the  enlarged  period,  he  may  treat 
the  contract  as  ended  and  abandon  it.(3)  It  was  said  in  one  case  that 
if  the  vendee  goes  on  with  the  negotiation  and  dealing  under  protest^ 
he  does  not  waive  his  objection  to  the  vendors  delay ;  (4)  but  this 
opinion  is  not  reconcilable  with  the  principle  of  the  cases  already 
cited.  (5) 

Notice  of  abandonment. 

Sec.  425.  The  right  to  enforce  a  contract  may  be  terminated  by 
notice  and  acquiescence.  If  one  of  the  parties  notifies  the  other  that 
he  shall  treat  the  contract  as  at  an  end,  or  will  not  regard  himself  as 
bound  by  it,  and  will  not  perform,  and  the  party,  who  receives  the 
notification,  neglects  to  enforce  his  right  under  the  agreement  by 
taking  prompt  steps  in  the  way  of  compelling  an  execution,  he  will 
be  considered  as  acquiescing  in  the  notice,  and  as  abandoning  his 
equitable  right  to  the  remedy  of  specific  performance. (6)  The  time 
specified  in  the  contract  for  presenting  objections  to  the  title  may  be 
enlarged  by  the  vendor's  assent, (7)  or  by  his  conduct. (8) 

(1)  Seton  V.  Slade,  7  Ves.  265  ;  Pincke  v.  Curteis,  4  Bi-o.  C.  C.  329  ;  Hipwell  v. 
Knight,  lY.  &C.  Ex.  401. 

(2)  Wood  V.  Bernal,  19  Ves.  220 ;  Smith  v.  Barnam,  2  Anstr.  i)27  ;  Paine  i\  Mel- 
ler,  6  Ves.  349  ;  "Wai-d  v.  Jeffery,  4  Pi-ice,  294  ;  Smith  v.  Sir  Thomas  Dohnan,  6 
Bro.  P.  C.  291  (Toml.  ed.) ;  Ex  pai-te  (xardner,  4  Y  &  C.  Ex.  503  ;  Wood  v.  Machu, 
5  Hare,  158  ;  Hog-gart  v.  Scott,  1  Russ.  &  My.  293. 

(3)  Parkin  v.  Thorold,  2  Sim.  (N.  S.)  1  ;  but  see  S.  C,  16  Beav.  59. 

(4)  Magennis  v.  Fallon,  2  Moll.  576. 

(5)  See  ante,  §  418.  In  Marquis  of  Hertford  x\  Booi*e,  5  Ves.  719.  a  coiiti-act  had 
lain  dormant  fourteen  months,  but  had  not  been  foi-mally  abandoned,  and  it  was 
specfically  enforced  ;  but  see  Mihvard  v.  Eai-1  of  Thanet,  5  Ves.  720 ;  (Barrett  v. 
Lord  Besboi-ough,  2  Dr.  &  Walsh.  441. 

(6)  Guest  V.  Homfray,  5  Ves.  818  :  Heaphy  v.  Hill.  2  S.  &  S.  29  ;  Watson  ?>. 
Reid,  1  Russ.  &  My.  236  ;  Walker  v.  Jeffreys,  1  Hare,  341. 

(7)  Cutts  V.  Thodey,  13  Sim.  205. 

(8)  Upperton  v.  Nickolson,  L.  U.  6  ("h.  435. 

505 


TTME  AS  AFFECTING    THE  KIOHT,  493 

Conduct  of  vendor  defeating  his  remedy. 

Sec.  426.  The  vendor  may  also  destroy  his  equitable  right  to  enforce 
the  contract  by  conduct  inconsistent  with  its  terms,  and  injurious  to 
the  vendee.  Thus,  when  the  contract- was  for  the  purchase  of  a  dwell- 
ing-house, so  that  immediate  possesssion  was  an  essential  element  of 
the  agreement,  and  the  vendor  turned  the  purchaser  out  of  the  posses- 
sion, he  was  held  to  have  thereby  abandoned  the  contract,  and  a 
specific  performance  at  his  suit  was  refused. (1)  On  the  other  hand, 
whenever  it  appears  reasonably  probable,  from  the  circumstances  of 
the  case — as  for  instance,  from  the  vendee's  bankruptcy,  or  from  his 
death  and  the  inability  of  his  personal  representatives  to  collect  his 
personal  property,  that  if  the  vendor  completes  on  his  own  part,  the 
price  will  not  be  paid  wdthout  a  very  long  delay — and  a  fortiori,  if  it 
will  not  be  paid  at  all — then  the  vendor  may,  for  his  own  protection, 
treat  the  agreement  as  rescinded,  and  successfully  resist  a  specific 
enforcement. (2)  Where  a  suit  by  the  vendor  is  dismissed  solely  on 
account  of  his  laches  in  bringing  it,  without  passing  upon  the  validity 
of  his  title,  the  rule  is  settled  in  England  that  the  court  of  equity 
will  not,  as  a  part  of  its  adjudication,  order  the  deposit  money  to  be 
returned  to  the  vendee,  but  will  leave  the  right  and  liability  as  to 
such  repayment  to  be  determined  by  an  action  at  law  (3) 

The  rights  of  the  parties  to  interest  or  to  the  rents  and  profits 
when  there  has  been  a  delay  in  the  performance. 

Sec.  427.     3.  A  number   of  special   rules   have    been   settled    by 

the  English  decisions  respecting  the  equitable  mode  of  adjusting 

the  compensation  to  one  or  the  other  of  the    parties   in   the    case 

*  of  delay,   consisting  generally   of  interest   payable    to   the  vendor, 

(1)  KnatchbuU  v.  Grueber,  3  Meriv.  124.  But  the  effect  of  the  vendor's  conduct 
must  always  depend  very  largely  upon  the  circumstances  of  each  case,  for  what 
would  be  inequitable  in  one  instance  might  be  i:)ei'fectly  proper  in  another.  Thus 
in  Colby  v.  Gadsden,  34  Bear.  41(),  420,  the  contract  was  to  be  completed  at  a 
specified  time,  and  from  that  time  the  vendee  was  to  receive  the  rents  and  profits, 
and  was  to  pay  interest  on  the  purchase-money  ;  the  purchaser  was  let  into  the 
receipts  of  the  rents  and  profits  without  his  payment ;  the  vendor  afterwards 
finding  out  that  he  got  and  could  get  neither  the  price  nor  the  interest,  as 
stipulated,  notified  the  tenants  who  were  in  actual  possession  to  pay  no  more 
rent  to  the  vendee  ;  the  vendor  sued  for  a  specific  performance,  and  it  was  held 
that  this  act  of  his  W3,s  not,  under  the  circumstances,  an  abandonment  of  the 
contract,  and  was  no  obstacle  to  a  decree  in  his  favor. 

(2)  "Whittaker  v.  Whittaker,  4  Bro.  C.  C.  31  ;  Sir  James  Lowther  v.  Lady 
Andover,  1  Bro.  C.  C.  396  ;  Mackreth  v.  Marlar,  1  Cox  259  ;  Rowe  V.  Young,  3 
Y.  &  C.  Ex.  199. 

(3)  Southcomb  v.  Bisho]i  df  Exeter,  (>  II.-u-o,  22."). 

50'J 


494  SPECIFIC   rKinORMASCE    OF  COyriiACTS. 

or  of  rents  and  protits,  or  an  occupation  valiio  allowod  to  tlie  vendee. 
These  rules  are,  of  course,  based  upon  the  forms  of  contract  which 
prevail  in  that  country.  In  England  the  contract  ordinarily  seems 
to  provide  that  on  a  certain  future  day  named  it  shall  be  completed 
by  a  delivery  of  possession  to  the  vendee  and  the  execution  of 
whatever  conveyance  is  necessary,  and  at  the  same  time  the  pur- 
chaser is  to  pay  the  price,  or  if  all  is  not  then  payable,  that  he  is 
to  pay  the  stipulated  portion,  and  give  the  security  for  the  remaining 
part,  as  agreed.  In  the  meauTime  the  land  remains  in  the  jiosscssion 
of  the  vend(U',  and  until  the  time  for  completion  and  payment  ani\os, 
the  purchaser  does  not  ordinarily  pay  interest  ujiou  the  jjrice.  The 
interval  between  the  date  of  concluding  the  contract  and  that  of  com- 
pleting it,  is  given  in  order  that  the  title  may  be  made  out  and  shown 
by  the  vendor  and  examined  and  approved  by  the  vendee.  This,  I 
say,  seems  to  be  the  ordinary  form,  but  is,  of  course,  subject  to  vari- 
ation in  particular  cases,  according  to  the  agreements  of  the  parties. 
If  when  the  time  for  completion  arrives  the  purchaser  is  ready  and 
willing  to  make  his  payment,  but  the  vendor  is  unable  to  jjcrform  on 
his  part  because  he  has  not  yet  perfected  his  title,  and  the  completion 
is  therefore  postponed,  it  is  highly  just  and  equitable  that  the  rents 
and  profits  accruing  after  that  day,  and  up  to  the  subsequent  day, 
when  the  contract  is  carried  into  effect,  should  be  allow'ed  to  the  ven- 
dee in  the  settlement  as  an  abatement  from  his  purchase-price,  or 
should  be  paid  over  to  hira ;  and  sometimes,  when  the  vendor  has 
been  much  in  fault  it  would  be  just  that  he  should  pay  the  vendee 
a  sum  as  occupation  rent  for  the  premises,  since  from  the  day  named 
for  the  completion,  the  vendee  ought  to  have  been  in  possession  and 
in  the  receipt  of  the  rents  and  profits.  On  the  other  hand,  if  at  the 
day  for  completion  the  vendor  is  ready,  but  the  vendee  fails  in  his 
payment,  and  only  succeeds  in  making  his  payment  at  a  subsequent 
time,  it  is  manifestly  just  that  he  should  be  forced  to  add  interest  on 
the  price  for  the  period  of  his  delay.  It  will  be  seen  that  the  English 
decisions  have  laid  down  general  rules  appliciable  to  the  foregoing 
conditions,  and  have  also  announced  other  special  rules  with  respect 
to  particular  stipulations,  or  exceptional  acts  of  the  parties. 

Sec.  428.  It  is  not  probable  that  these  rules  will  be  often  cited  and 
enforced  by  American  courts,  since  the  forms  of  contract  customarily 
used  in  this  country,  and  the  methods  of  conducting  the  business 
operations  of  transferring  land  are  so  unlike  those  which  prevail  in 
England.  Htill,  as  these  rules  are  not  arbitrary,  but  are  based  ujion 
the  plainest  i)rinciples  of  e(|uity,  there  is  no  reason  why  they  should 
not  be  adopted  by  the  Annn-ican  courts  in  deciding  upon  the  rights  of 
parties  under  contracts  similar  in  their  form  and  provisions  to  those 

507 


TIME   AS   AFFECTIXG    THE    RIGHT  495 

by  v/hich  land  is  sold  or  leased  in  England.     If  the  facts  and  circum- 
stances are  strictly  analogous,  then  there  is  every  reason  why  the 
rules  should  be  followed.      Still    it  must  be  conceded  at  once  that 
they  are  not  adapted  to  the  agreements  for  the  sale  of  lands  com- 
monly employed  in  the  United  States.     In  the  vast  majority  of  cases, 
the  American  agreement,  whatever  be  its  external  form  —  whether  a 
title  bond,  articles,  land  contract,  or  otherwise — provides  that  the 
vendee   shall  have    possession,  and,  of  course,  the  pernancy  of  the 
rents  and  profits  immediately  upon  the  conclusion  of  the  contract,  that 
he  shall  pay  a  portion  of  the  price  at  the  same  time  (although  this  is 
sometimes  omitted),  and  that  the  balance  of  the  price  (or  sometimes 
all  of  it)  shall  be  paid  in  a  specified  number  of  future  installments, 
with  interest  on  the  whole  balance  remaining  unpaid,  payable  with 
each  installment,  and  when  these  payments  are  completed,  the  vendor 
is  to  give  a  deed  of  conveyance.     One  variation  from  this  form  is  not 
uncommon,  namely,  that  after  a  certain  portion  of  the  price  is  paid, 
either  in  hand  or  by  installment,  the  vendor  is  to  convey  and  the 
vendee  is  to  secure  the  balance  of  the  purchase-money,  with  interest, 
by  a  mortgage  upon  the  premises  themselves.    It  will  be  seen  that,  in 
case  of  a  delay  in  completion  by  the  default  of  either  party,  the  com- 
pensation is  already  provided  for,  without  any  special  direction  of 
the  court,  by  the  very  terms  of  the  agreement.     And  this  is  always 
equitable  and  just.     If  the  vendor  is  in  fault,  and  delays  to  convey 
the  legal  title,  the  vendee  does  not  generally  lose  anything  substan- 
tial by  the  delay ;  he  has  the  possession  all  the  time,  and  the  rents 
and  profits,  and  it  is  right  and  fair  that  he  should  pay  interest  on  the 
purchase-money  until  the  whole  is  paid  up.   If  the  vendee  is  in  default 
and  causes  the  delay,  the  vendor  still  obtains  his  interest,  which  equity 
has  determined  to  be  a  sufficient  compensation  for  a  delay  in  making 
pecuniary  payments.    It  appears,  therefore,  that  in  all  ordinary  cases, 
there  is  no  opportunity  and  no  need  of  applying  the  English  rules 
concerning  compensation  for  delay  to  American  contracts.     Still,  as 
cases  may  arise  in  this  country  to  which  these  English  rules  will  be 
applicable,  I  shall  give  their  substance  in  a  brief  manner.    Cases  may 
arise  under  the  common  form  of  the  American  contract,  w^hich  call  for 
the  settlement  of  general  doctrines  concerning  compensation,  but  they 
do  not  belong  to  the  subject  of  specific  performance,  and  do  not,  there- 
fore, fall  within  the  scope  of  this  work.     For  example  :  When  the 
vendee  has  taken  possession  under  his  contract,  and  has  received  the 
rents  and  profits  of  the  land,  but  utterly  fails  in  making  the  stipu- 
lated payments,  so  that  the  vendor  is  entitled  to  rescind  and  recover 
5<Jb 


496  SPECIFIC   PKRFOh'MAXi'K    OF  COSTRACTS. 

back  the  premises.  Here  he  is  undoubtedly  entitled  to  a  proper 
compensation  for  the  vendor's  possesion  and  use  of  tlie  land  dining'- 
the  interval ;  but  such  compensation  forms  no  element  of  a  suit  for 
specific  performance  ;  it  assumes  that  the  contract  is  not  to  bf  per- 
formed but  is  avoidiMl,  and  it  is  recoverable  in  an  action  at  law.  With 
these  preliminary  remarks,  by  way  of  explanation,  I  proceed  to  state 
the  results  of  the  English  decisions  upon  this  particular  topic. (1) 

Sec.  429.  The  general  rule  is  well  settled  that,  where  the  contract  is 
not  completed  until  after  the  time  stipulated  for  that  pui'pose,  but  the 
court  nevertheless  decrees  a  specific  performance,  it  will  adjust  the 
equities  of  the  parties  by  placing  them  as  far  as  possible  in  the  same 
position  which  they  would  have  occupied  had  the  agreement  been 
completed  at  the  prescribed  day,  and  to  that  end  it  will  allow  to  the 
purchaser  the  rents  and  profits,  and  to  the  vendor  interest  u})on  the 
purchase-price  from  and  after  that  date. (2) 

(1)  In  Lombard  v.  Chicago  Sinai  Congregation,  75  111.  271,  the  principle  of  the 
English  rule,  as  given  in  the  cases  cited  below,  was  fully  adopted.  The  contract  was 
for  the  sale  of  a  house  and  lot,  and  the  vendor  was  to  furnish  a  satisfactory 
abstract  of  title,  at  a  specified  time,  which  was  not  done,  and  thereby  a  delay  was 
caused.  In  the  decree  it  was  pi-ovided  that  the  vendor  should  be  left  in  possession 
of  the  rents  and  profits  until  a  good  title  was  shown,  and  from  that  time  only 
should  the  vendor  be  entitled  to  interest  upon  the  price  ;  after  that  time  the  ven- 
dee should  be  required  to  pay  the  interest  specified  in  the  contract,  and  the 
vendor  should  be  required  to  account  for  reasonable  rents  and  profits,  although 
none  had  actually  been  received,  because  the  f)uilding  was  destroyed  by  tire  after 
the  conclusion  of  the  contract.  In  Drake  v.  Barton,  18  Minn  ,  462,  it  was  decided, 
in  accordance  with  the  general  understanding  and  practice  in  respect  to  agree- 
ments for  the  sale  of  lands  in  the  United  States,-  that  if  the  contract  is  silent  on  the 
subject,  the  vendee  is  entitled  to  immediate  possession  of  the  land,  and  the  vendor 
is  entitled  to  interest  on  the  purchase-price  from  the  time  of  concluding  the  agree- 
ment. In  King  v.  Ruckman,  9  C.  E.  Green,  298,  556,  it  was  held  that  when  a 
vendor  refuses  to  convey,  and  keeps  the  vendee  out  of  possession,  and  the  rents 
and  jirofits  of  the  land  are  less  than  the  interest  on  the  price,  the  vendor  is  not 
entitled  to  interest  on  the  purchase-money  acerruing  prior  to  his  conveyance.  In 
such  a  case  the  vendoi-  will  keeji  the  rents,  and  the  vendee  need  not  pay  interest. 

(2)  De  Visme  v.  De  Visme,  1  Hall  &  Tw.  418  ;  1  Mac.  &  G.  346  ;  Sir  James  Low  - 
ther  V.  Countess  of  Andover,  1  Bro.  C.  C.  396;  Davy  V.  Barber,  2  Atk.  490 ;  Owen 
V.  Davis,  1  Ves.  82  ;  Monro  v.  Taylor,  8  Hare,  70  ;  3  Mac.  &  G.  713  ;  Grove  r. 
Bastard.  1  De  G.  M.  &  G.  69  :  Bailey  u  Collett,  18Beav.  179  ;  Phillips  w.  Sylvester, 
L.  U.  8  Ch.  173  ;  Leggott  v.  M.'trnpolitan  R'y  Co.,  L.  R.  5  Ch.  716  ;  in  Phillips  v. 
Sylvester,  L.  R.  8  Ch.  173,  the  tr\istees  of  a  deceased  vendor  sued  for  a  specific 
performance ;  vendee  ilid  not  deny  his  obligation,  and  was  willing  iiU  the  time  to 
complete,  but  claimed  that  the  contract  included  a  certain  additional  jiiece  of 
land.  The  vendors  (plaintiffs)  had  a  decree  not  embracing  this  piece.  Plaintiffs 
had  not  allowed  the  vendee  to  take  possession,  and  had  sufiei-ed  the  land  to  lie 
-waste.  Held,  affirming  the  M.  R.  that  the  defendant  must  be  allowed  to  set  off 
against  the  interest  payable  by  liim,  the  ammmt.if  rent  which  might  have  been 

509 


TIME  AS  AFFECTING    THE  RIGHT.  497 

Sec.  480.  In  ordinary  contracts,  which  contain  no  stipulations  con- 
cerniii^i,'-  the  payment  of  interest,  and  do  not  specify  any  day  for  com- 
pletioji,  the  purchaser  is  g-enerally  liable  to  pay  interest  ou  the  pur- 
chase-money from  the  time  when  he  takes  the  possession,  especially  if 
he  has  received  the  rents  and  prolits.(l)  If,  however,  there  is  a  stron^^ 
objection  to  the  title,  the  purchaser  is  not  bound  to  take  possession  and 
pay  interest  until  the  doubt  is  removed.(2)  In  a  contract  for  the  sale 
of  a  reversion,  which  is  silent  respecting  interest,  interest  is  payable 
from  the  time  appointed  for  completion,  without  regard  to  the  pos- 
session. (3) 

received  from  the  land,  and  the  amount  of  deterioration  of  the  land,  citing-  Ferg-u- 
son  V.  Tadman,  1  Sim.  530  ;  Binks  v.  Lord  Rokeby,  2  Sw.  222  ;  Minchin  v. 
Nance,  4  Beav.  332  ;  Sherwin  v.  Shakespear,  5  De  G.  M.  &  G.  517.  In  Leggett  v. 
Metropolitan  R'y  Co.,  L.  R.  5  Ch.  716,  the  vendor  sued  and  had  a  decree.  Held, 
that  the  vendee  was  not  entitled  to  any  abatement  by  the  way  of  occupation  rent, 
on  the  ground  that  plaintiff  had  retained  the  possession  after  the  time  when  the 
possession  was  to  have  been  delivered  by  him  and  the  price  paid  by  the  defend- 
ant, since  the  defendant  had  not  paid  the  price  at  that  time,  and  plaintiff  had  been 
compelled  to  sue  for  a  specific  performance,  jier  Janes,  L.  J.,  p.  719  :  "  No  doubt 
it  is  the  ordinary  rule  between  the  vendor  and  the  purchaser,  that  after  the  time 
fixed  for  completion  the  vendor  is  entitled  to  interest,  and  the  purchaser  to  the 
rents  and  profits  ;"  but  this  rule  was  held  not  to  ajiply  under  the  special  facts  of 
the  case  and  the  default  of  the  vendee.  The  vendee  is  liable  for  the  interest,  as 
stated  in  the  text,  even  when  the  purchase-money  has  lain  all  the  time  in  his 
hands  •'  dead  " — that  is,  unused,  idle,  and  producing  no  interest,  income,  or  profit, 
provided  the  delay  was  caused  by  his  default.  Calcraft  v.  Roebuck,  1  Ves.  221  ; 
Enraght  v.  Fitzgerald,  2  Ir.  Eq.  Rep.  87  ;  but  not  when  the  delay  was  caused  by 
the  vendor's  fault.  Howland  v.  Norris,  1  Cox,  59.  But  even  in  the  last  case,  if 
the  vendee  would  escape  the  liability  to  i)ay  interest,  he  must  actually  set  aside 
the  money  and  appropriate  it  for  the  vendor ;  must  not  in  any  way  derive  a  benefit 
from  it,  and  must  notify  the  vendor  of  these  facts,  and  that  the  money  is  thus  lying 
idle.  Calci-aft  v.  Roebuck,  1  Ves.  221  ;  Powell  v.  Martyr,  8  Ves.  146 ;  Roberts  v. 
Massey,  13  Ves.  561 ;  McCann  v.  Forbes,  1  Hogan,  13  ;  Dyson  v.  Hoi-nby,  4  DeG. 
&  Sm.  481  ;  Kershaw  V.  Kershaw,  L.  R.  9  Eq.  56  ;  Regents  Canal  Co.  v.  Ware,  23 
Beav.  575.  Since,  if  the  vendee  does  not  set  apart  and  appropriate  the  money, 
or  if  he  derives  any  benefit  from  it,  he  must  pay  interest,  although  the  delay  is 
the  vendor's.     Winter  v.  Blades,  2  S.  &  S.  393. 

(1)  Ex  parte  Manning,  2  P.  Wms.  410  ;  Birch  v.  Joy,  3  H.  L.  Cas.  565  ;  Smith  v. 
Dolman,  6  Bro.  P.  C.  291  (Toml.  ed.)  ;  Powell  v.  Martyr,  8  Ves.  148,  149  ;  Flud- 
yer  xi.  Cocker,  12  Ves.  25  ;  Binks  v.  Lord  Rokeby,  2  Sw.  222,  226  ;  Att'y-Gen.  v, 
Christ  Church,  13  Sim.  214;  but  see  Blount  v.  Blount,  3  Atk.  636. 

(2)  Forteblow  v.  Shirley,  cited  2  Sw.  223  ;  Carrodus  v.  Sharp,  20  Beav.  56. 

(3)  It  is  said  :  "  Upon  the  sale  of  a  reversion,  the  time  at  which  the  purchaser 
takes  possession  has  nothing  to  do  with  the  question  of  interest  on  the  purchase- 
money.  The  advantage  obtained  by  the  delay,  and  wearing  out  of  the  previous 
life  interests,  is  equivalent  to  the  receipt  of  the  rents  of  a  property  in  possession. 
Bailey  v.  Collett,  18  Beav.  179,  182  ;  Davey  v.  Barber,  2  Atk.  490 ;  Owen  ■». 
Davies,  1  Ves.  82. 

^10 


498  SPECIFIC   PKh-FORMANCE   OF  CONTRACTS. 

rSEC.  431.  These  general  rules  are,  of  course,  liable  to  be  modified  if 
the-contract  contains  express  provisions  concerning'  the  payment  of 
interest.  fSuch  provisions  will  govern,  unless  the  vendor  by  his  own 
unreasonable  delay  forfeits  his  right  to  claim  the  interest  as  Btii)ulatod 
to  be  paid.(l)  Where  the  contract  stipulates  that  interest  is  to  be 
paid  by  the  vendee  "  from  whatever  caus(^  the  delay  may  arise,"  or 
words  to  that  ertect,  and  the  delay  is  caused  by  the  vtMidor  s  fraud 
or  willful  neglect,  then  if  the  interest  exceeds  the  rents  and  profits, 
the  vendor  will  be  left  in  the  enjoyment  of  the  rents  and  profits,  while 
the  vendee  will  be  excused  from  payment  of  interest  until  a  good  title 
is  shown  ;  from  and  after  that  time  the  vendee  must  pay  the  interest 
and  receive  the  rents  and  profits. (2)  But  under  the  same  fomi  of 
contract  if  the  delay  arises  from  the  defective  title,  or  the  difficulty  of 
making  out  a  good  title,  without  any  fraud  or  willful  neglect  of  the 
vendor,  the  purchaser's  interest  must  be  paid  in  pursuance  of  the 
agreement.  (3) 

Sec.  432.  If,  during  his  delay  in  perfecting  or  making  out  a  good  title 
the  verdor  causes  or  permits  the  property  to  become  deteriorated 
in  value,  either  by  postive  mismanagement,  or  by  using  it  in  an  un- 

(1)  In  Herbert  v.  Salisbury,  etc.,  R'y  Co.,  L.  R.  2  Eq.  221,  the  vendee  agreed  lu 
the  contract  to  pay  a  hig-h  rate  of  interest  if  it  was  not  completed  at  a  certain  day. 
The  completion  was  delayed  a  long  time,  but  not  by  reason  of  the  vendor's  mis- 
conduct or  negligence.  Held,  the  vendee  was  bound  to  pay  the  stipulated 
interest.  In  Williams  v.  Glenton,  L.  R.  1  Ch.  200,  the  contract  stipulated- that  the 
vendee  was  to  pay  interest  in  case  of  a  delay  in  completion  "  for  any  cause."  The 
Tendee  was  compelled  to  pay  interest,  although  the  delay  was  caused  by  the 
vendor's  inability  to  give  a  good  title  at  the  time  agreed,  and  he  had  maintained 
a  long  litigation  in  order  to  perfect  his  title.  In  Kershaw  v.  Kershaw,  L.  R.  9  Eq. 
56,  the  land  was  sold  for  38,500Z.,  and  the  vendee  agreed  to  pay  interest  on  it  until 
the  time  when  the  price  itself  was  jiaid,  and  he  was  put  in  possession.  Some  dis- 
putes subsequently  arose  in  the  process  of  completing  the  contractt,  and  the  ven- 
dee deposited  in  a  bank  to  a  separate  account  the  sum  of  38,000/..  and  notified  the 
vendors  that  he  had  appropriated  this  sum  for  the  purposes  of  the  purchase,  and 
that  should  not  pay  interest  on  it  under  the  contract.  The  vendors  di.sputed  the 
sufficiency  of  his  notice,  but  made  no  objection  because  the  sum  deposited  was 
.'iOOL  less  than  the  price.  The  vendee,  as  soon  as  he  noticed  this  detipiency. 
deposited  500Z.  more  with  the  38,000/.,  together  with  interest  on  it  up  to  that  time. 
Held,  that  the  vendee  was  not  liable  for  any  interest  after  the  date  of  his  original 
deposit  of  the  38,000/. 

(2)  Vickers  v.  Hand.  26  Beav.  630. 

(3)  Esdaile  v.  Stephenson,  1  S.  &  S.  122  ;  Williams  v.  Glenton,  L.  R.  1  Ch.  200; 
34  Beav.  528  ;  13  W.  R.  1030  ;  Rowley  v.  Adams,  12  Beav.  47f.  ;  Sherwin  t'. 
Shakspeare,  5  DeG.  M.  &  G.  517  ;  Bannerman  v.  Clarke,  26  L.  J.  (N.  S.)  Ch.  77  ; 
Lewis  V.  South  Wales  R'y  Co.,  10  Hare,  113  ;  Vickers  v.  Han.l,  26  Beav.  630 
(ovBJTuling  De  Visme  v.  De  Visme,  1  Mac.  &  G.  336) ;  Lord  Palmerston  v.  Turner, 
33  Beav.  524. 

611 


TIME  AS  AFFECTING    THE   RIGHT.  49i> 

husband-like  manner,  or  by  waste,  active  or  passive,  or  by  dilapida- 
tion, the  vendee,  on  the  settlement,  will  be  allowed  a  compensation 
for  the  injury  ;(1)  and  if  lie  has  already  paid  the  i)iirchase-price,  under 
an  order  of  the  court,  he  will  also  be  allowed  interest  on  the  compen- 
sation, calculated  from  the  date  of  the  payment  of  the  price. (2)  When 
the  deterioration  occurs  after  the  time  when  the  purchaser  has  taken 
possession,  or  ought  to  have  taken  possession,  lie  is  not  entitled  to 
compensation  ;(3)  nor  when  it  is  caused  by  his  own  act  or  omission. (4) 
Timber  accidentally  falling — e.  g.,  blown  down — after  the  date  of  the 
contract,  belongs  to  the  vendee. (5)  If  the  vendor  cuts  any  ordinary 
timber  after  the  date  of  the  contract,  the  purchaser  is  entitled  to  com- 
pensation therefor  ;(6)  while,  if  the  vendor  cuts  ornamental  timber 
after  that  time,  the  vendee  can,  on  that  account,  rescind  the  con- 
tract.(7)  If  the  vendor  voluntarily  makes  improvements  upon  the 
land,  after  he  has  entered  into  a  contract  for  its  sale,  the  purchaser  is 
not  bound  to  reimburse  him  for  his  outlays,  or  to  repay  him  for  their 
value. (8)  "Where  the  contract  is  silent  upon  the  subject,  the  vendor 
is  chargeable  with  all  the  expenses  and  "  outgoings "  of  the  land 
■which  he  has  agreed  to  sell  from  the  date  of  the  contract  to  the  time 
when  the  vendee  might  take  possession,  which  is  the  time  of  showing 
a  good  title ;  and  he  cannot,  of  course,  claim  to  be  reimbursed  by  the 
purchaser.  (9) 

(1)  Foster  v.  Deacon,  3  Madd.  394  ;  Phillips  v.  Sylvester,  L.  R.  8  Ch.  173  ;  20 
W.  R.  406  ;  Lord  v.  Stephens,  1  Y.  &  C.  Ex,  222  ;  3  Y.  &  C.  Ex.  50S  ;  Carrodus  v. 
Sharp,  20  Beav.  56;  [Bostwick  v.  Beach,  105  N.  Y.  661;  Head  v.  Meloney,  111 
Pa.  St.  99.] 

(2)  Ferg'uson  v.  Tadman,  1  Sim.  530. 

(3)  Binks  v.  Lord  Rokeby,  2  Sw.  226 ;  Phillips  v.  Sylvester,  20  W.  R.  406  ; 
Minchin  v.  Nance,  4  Beav.  332. 

(4)  Harford  i;.  Purrier,  1  Madd.  532,  the  vendee  caused  a  tenant  to  leave  before 
the  completion  of  the  contract. 

(5)  Poole  V.  Shergold  2  Bro.  C.  C.  118  ;  1  Cox  273. 

(6)  Magennis  v.  Fallon,  2  Moll.  588. 

(7)  Mag-ennis  v.  Fallon,  sujwa. 

(8)  Master  of  Clare  Hall  v.  Harding-,  6  Hare,  296  ;  Monro  v.  Taylor,  8  Hare, 
60.;  Sherwin  -u,  Shakspeai-e,  5  De  G.  M.  &  G.  517. 

(9)  Carrodus  v.  Sharp,  20  Beav.  56.  In  Lawes  v.  Gibson,  L.  R.  1  Eq.  185, 
property  held  by  lease  was  ag-i-eed  to  be  transferred,  and  the  lease  assigned  by 
the  lessee  to  a  purchaser,  the  agreement  providing  that  possession  should  be 
given  Nov.  14,  1864,  all  '  outgoings '  up  to  that  day  being  cleared  by  the  ven- 
dor." Held,  on  a  suit  by  the  vendor,  that  the  i-ent  of  the  premises  payable  for 
their  use  to  the  lessor,  accruing  since  the  last  quarter-day,  up  to  November  14, 
was  an  "  outgoing,"  and  the  amount  of  it  should  be  allowed  to  the  vendee. 
That  is,  as  this  rent  would  not  be  actually  due  and  payable  until  the  end  of  the 
quarter,  which  was  some  time  after  November  14,  and  then  the  vendee  being 
■ssignee  of  the  lease  would  be  obliged  to  pay  the  entire  quarter's  rent,  although 

512 


500  SPECIhlC   PKliFOIiMANVK    OF  CONTRACTS. 

Sec.  433.  Special  rules  are  established  in  England  in  respect  of 
land  sold  by  order  of  the  court,  which,  being  entirely  a  part  of 
their  system  of  administering  landed  estates,  have  })robably  no  api)li- 
cation  or  force  in  this  country.  Where  an  estate  in  possession  is  sold  by 
order  of  the  court,  the  rents  and  profits  from  the  quarter-day  next 
before  the  date  of  the  sale  are  allowed  to  the  vendee,  and  lie  must  pay 
the  purchase-price  before  the  next  quarter  after  the  salt\(l)  Wlieu  a 
reversionary  estate  is  thus  sold,  the  date  of  confirming  the  re[)ort  of  sale 
absolute  is  the  one  at  which  tli<>  rights  are  considoi-ed  as  fixed;  tho 
vendee  is  bound  to  pay  interest  from  that  day,  and  is  entitled  to  any 
appreciation  in  the  value  of  the  estate  arising  from  the  death  of  per- 
sons upon  whose  lives  the  precedent  estate  or  estates  are  limited,  which 
may  happen  subsequent  to  that  day. (2) 


SECTION  IV. 

Partial  specific  performance,  and  compensation. 

Section  434.  When  the  vendor's  title  proves  to  be  defective  in  some 
particulars,  or  his  estate  is  different  from  that  which  he  agreed  to 
convey,  or  is  subject  to  incumbrances  or  outstanding-  rights  in  thinl 
persons,  or  the  subject-matter — generally  the  laud — is  deficient  in 
quantity,  quality,  or  value,  it  is  plain  that  the  contract  cannot  be  spe- 
cifically performed,  according  to  its  exact  terms,  at  the  suit  of  either 
party.  In  such  a  case  there  are  only  three  possible  alternatives  for  a 
court  of  equity  to  pursue  ;  either  to  refuse  its  remedy  entirely  ;  or  to 
enforce  the  contract  without  any  regard  to  the  partial  failure,  com- 
pelling the  purchaser  to  take  what  there  is  to  give  and  to  pay  the  full 

he  had  been  in  possession  only  since  November  14  ;  therefore  the  vendor  shonld, 
for  purpose  of  reimbursement,  allow  him  the  amount  of  the  rent  accruing 
between  the  commencement  of  the  (luai-tei-  and  November  14.  See,  also,  Cud- 
don  7!.Tite,  1  Giff.  39."). 

CI)  Mackrell  v.  Hunt,  2  Madd.  34  n.,  but  he  is  not  allowed  to  deduct  the  pro])- 
erty  tax.     Holroyd  v.  Wyatt,  1  DeG.  &  Sm.  125. 

(2)  Ex  Parte  Manning-,  2  P.  Wms.  410 ;  Davy  v.  Barber.  2  Atk.  489  ;  Child  r. 
Lord  Abing-don,  1  Ves.  94  ;  Champeraowne  ■?).  Brooke,  3  CI.  &  Fin.  4  ;  4  CI.  &  Fin. 
589  ;  2  Y.  &  C.  Ex.  .')10;  3  Y.  &  C.  Ex.  50.5  ;  Wallis  v.  Sarel,  5  De(^.  &  Sm.  429  ;  in 
Trefusis  v.  Loi-d  Clinton,  2  Sim.  3.o9,  interest  was  ordered  to  be  ]);iid  from  the  <late 
of  the  purchase,  contrai-y  to  the  g-eneral  rule.  See  Robei-tson  v.  Skelton,  13  Beav. 
91.  Blount  P.  Blount,  3  Atk.  6'M'),  is  said  to  be  misreporteil.  In  respect  to  these 
special  Eng-lish  i-ules,  see  White  &  Tudor's  Lead.  Cas.  in  E(i.  vol.  2,  ])p.  1057- 
1060  (4th  Am.  ed.  of  1877),  from  which  they  are  compiled. 

:>13 


PARTIAL   FKRFOKMANCE.   AND    COMPENSATION.  501 

price  as  agreed ;  or,  to  decree  a  conveyance  of  the  vendor's  actual 
interest,  and  allow  to  the  vendee  a  pecuniary  couipeusation  or  abate- 
ment from  the  price,  proportioned  to  the  amount  and  value  of  the  defect 
in  title  or  deficiency  in  the  subject-matter.  In  determining  which  of 
these  alternatives  to  adopt,  it  is  evident  that,  under  all  ordinary  cir- 
cumstances, the  second  one  would  be  extremely  unjust  and  inequi- 
table, and  yet  it  is  occasionally  resorted  to  when  the  vendee  is  not  in 
a  situation  which  entitles  him  to  favorable  consideration.  The  first 
alternative  might  often  contravene  the  wishes  and  interests  of  both 
the  parties,  and  cannot  therefore  be  taken  as  the  general,  or,  at  least, 
universal  rule.  Htill,  if  the  deficiency  or  defect  is  large  and  material, 
and  the  purchaser  is  unwilling  to  accept  a  partial  performance,  this 
alternative  must  be  adopted.  The  third  is  based  upon  equitable 
principles  ;  it  endeavors  to  preserve  the  rights  of  both  the  parties, 
and  is  therefore  constantly  resorted  to  and  applied  by  courts  of  equity 
in  aid  of  a  vendee,  and  sometimes,  although  under  more  and  greater 
restrictions,  in  aid  of  the  vendor.  There  are  circumstances,  how- 
ever, under  which  even  a  vendee  is  not  allowed  to  avail  himself  of  its 
doctrine. 

Sec.  435.  If  the  purchaser  is  willing  and  desirous  to  take  the  par- 
tial interest  which  the  vendor  can  convey,  and  especially  if  he  is  the 
party  calling  upon  the  court  for  relief,  there  can  be  but  little  difficulty 
in  granting  him  the  remedy  of  performance,  with  a  reasonable  com- 
pensation for  the  defects.  The  great  difficulty  arises  when  the  ven- 
dor asks  the  court  to  compel  the  purchaser  to  accept  the  partial  in- 
terest, with  a  compensation,  and  the  defendant  objects  to  any  decree  ; 
or  when  the  vendor  asks  the  court  to  enforce  the  contract  without 
compensation,  while  the  vendee,  not  absolutely  refusing  to  accept  the 
conveyance,  insists  that  compensation  should  be  allowed  him  as  an 
incident  of  the  relief.  The  solution  of  this  difficulty  always  turns 
upon  the  nature  and  extent  of  the  defect  which  inheres  in  the  ven- 
dor's title  or  in  the  subject-matter.  If  the  vendor  is  unable  to  per- 
form the  agreement  upon  his  part  in  respect  of  some  substantial,  ma- 
terial provision  or  feature,  then,  as  has  been  heretofore  shown,  he  can- 
not obtain  a  decree  for  any  relief  against  an  unwilling  purchaser. 
If  the  vendor's  non-performance  is  not  substantial  and  material,  but 
is  a  mere  failure  to  carry  out  the  terms  with  exact  and  literal  accuracy,  so 
that  he  is  really  able  to  do  in  substance  all  that  he  undertook,  then, 
as  has  been  already  stated,  he  may  come  into  court  as  an  actor  and 
compel  the  vendee  to  accept  his  performance,  and  to  carry  the  con- 
tract into  execution,  sometimes  with,  and  even  sometimes  without,  any 

514 


\ 


502  SFECIFiC  FKh'FOliMA.SCE    OF   CO.XTIiACTS. 

compensation.  The  practical  (iifficulties  which  meet  the  courts  in  ad- 
ministering' this  general  doctrine,  arise  tVom  the  necessity  of  deciding 
::i  each  case,  or  class  of  cases. whether  the  vendor's  defect,  or,  ia  other 
words,  failure  to  perform,  is  substantial,  or  is  only  immaterial  and 
torma!.  iStill,  the  g-reat  number  of  decisions  wliich  have  been  made, 
furnisli  the  means  of  discovering  and  arranging  certain  rules  which 
are  now  recognized  and  constantly  followed  by  tlie  courts  of  equity. 

distinction  bet-v^een  compensation  and  damages. 

Sec.  436.  Before  proceeding  w-ith  the  discussion,  it  may  be  proper 
to  point  out  the  distinction  botw'een  the  "  compensation  "  which  is 
allowed  as  a  part  of  Lho  decree  for  a  specific  performance,  and  "  dam- 
ages "  to  which  one  of  the  parties,  usually  the  vendee,  may  be  entitled 
for  a  complete  or  partial  breach  of  the  contract.  A  court  of  law  may 
always  give  damages  in  an  action  properly  brought  for  that  purpose. 
A  court  of  equity  may,  also,  under  special  circumstances,  entertain  a 
suit,  and  award  a  decree  for  damages  alone  when  a  decree  for  a  specific 
performance  has  been  made  impossible  by  the  conduct  of  the  defend- 
ant ;  and  it  may  also,  under  very  peculiar  circumstances,  grant  dam- 
ages to  the  plaintiff  as  an  incident  of  its  equitable  remedy  of  specific 
performance,  although  the  jurisdiction  to  award  this  relief  in  both 
these  cases  was  at  one  time  denied  by  the  courts  of  equity. (1)  Still,  this 
relief  of  damages  is  only  given  in  exceptional  cases,  and  purely  as 
ancillary  to  the  equitable  remedy,  when  the  court  has  already  obtained 
jurisdiction  of  the  case  by  virtue  of  its  equitable  powders,  and  deter- 
mines to  do  full  justice  to  the  party  in  one  cause,  instead  of  compelling 
him  to  commence  a  separate  litigation  in  a  court  of  law.  "  Compen- 
sation," on  the  other  hand,  using  the  word  in  its  special  and  restricted 
meaning,  is  an  ordinary  and  constant  incident  of  the  remedy  of  spe- 
cific performance,  a  part  of  the  general  course  of  administering  the 
doctrines  of  equity,  and  is  to  be  regarded,  not  as  an  independent 
and  separate  award  of  damages,  but  rather  as  a  condition  upon  which 
the  relief  of  specific  performance  is  granted  at  all,  or  as  a  modifica- 
tion of  that  relief,  so  that  it  may  be  adapted  to  the  circumstances  of 
the  case  and  the  equities  of  the  parties.  Although  the  amount  of 
compensation  may  be  ascertained  upon  somewhat  the  same  basis  as 
that  upon  which  damages  would  be  assessed  for  the  same  loss,  yet 

,  (1)  See  Cleaton  v.  Gowei-,  cases  temp.  Finch,  164  ;  City  of  London  v.  Na-^h,  3 
Atk.  512  ;  Todd  v.  Gee,  17  Ves.  278  ;  Jenkins  v.  Parkinson,  2  My.  &  K.  5  ;  Prothero 
V.  Phelps,  25  L.  J.  Ch.  lO.'i,  108,  per  Turner,  L.  J.;  Morss  v.  Elmendorf.  11  Paig-e, 
277,  per  Walworth,  Ch.  ;  Hatch  v.  Cobb,  4  Johns.  Ch.  559,  per  Kkxt,  Cli.;  Kemps- 
hall  V.  Stone,  5  id.  103  ;  Woodward  v.  Harris,  2  Barb.  439  ;  Wiswall  v.  McGowan, 
1  Hoff.  Ch.  125 ;  Story  Eq.  Jur.  §  798 ;  Robertson  v.  Hogsheads,  3  Leigh,  667. 

515 


PARTIAL   PERFORMANCE,  AND    COMPENSATION.  505 

ihe  motives  and  principles  upon  which  compensation  is  allowed  are 
wholly  different  from  those  upon  which  damages  are  awaided.  The 
subject  of  damages,  instead  of,  or  as  an  incident  of,  a  specific  perform- 
ance, will  be  examined  in  a  subsequent  section,  and  no  further  allu- 
sion will  be  made  here  than  this  distinction  between  it  and  "  com- 
pensation." 

Sec.  437.  As  has  already  been  indicated,  the  courts  of  equity  are 
governed  by  diff'erent  considerations  and  doctrines  in  their  award  of 
compensation  in  the  two  cases  where  the  vendee  and  the  vendor, 
respectively,  are  the  actors  who  demand  the  general  relief  of  a  specific 
performance.  These  two  cases  must,  therefore,  be  discussed 
separately.  It  must  be  noticed  that  I  do  not  say,  wdiere  the  vendee  or 
vendor  is  the  plaintiff,  although  in  applying  the  rules  to  be  hereafter 
stated,  the  party  asking  relief  generally  is  the  plaintiff.  But  under 
the  system  of  procedure  now  prevailing  over  a  large  part  of  this  coun- 
try as  well  as  in  England,  the  party  asking  the  remedy  may  be  the 
defendant  in  the  actual  suit,  and  may  set  up  his  right  of  action  as  a 
"counter-claim"  or  demand  for  affirmative  relief.  I,  therefore,  employ 
a  term  which  will  include  both  of  these  positions,  and  have  to  consider : 
1,  the  case  in  which  the  vendee ;  and  2,  that  in  which  the  vendor  is 
the  actor. 

Where  the  vendee  is  the  actor,  demanding  a  partial  specific  per- 
formance, or  a  specific  performance  -with  compensation. 

Sec.  438.  I.  The  general  doctrine  is  firmly  sett  led,  both  in  England 
and  in  this  country,  that  a  vendor  whose  estate  is  less  than  or  different 
from  that  which  he  agreed  to  sell,  or  who  cannot  give  the  exact  subject- 
matter  embraced  in  his  contract,  will  not  be  allowed  to  set  up  his 
inability  as  a  defense  against  the  demand  of  a  purchaser  who  is  willing 
to  take  what  he  can  get  with  a  compensation.  The  vendee  may,  if  he  sa 
elect,  enforce  a  specific  performance  to  the  extent  of  the  vendor's  ability 
to  comply  with  the  terms  of  the  agreement,  and  may  compel  a  convey- 
ance of  the  vendor's  deficient  estate,  or  defective  title  or  partial  subject- 
matter,  and  have  compensation  for  the  difference  between  the  actual 
performance,  and  the  performance  which  would  have  been  an  exact  ful- 
fillment of  the  terras  of  their  contract.  Or,  to  state  the  doctrine  in  lan- 
guage used  by  Lord  Eldon  in  a  leading  case :  "If  a  man  having 
partial  interests  in  an  estate,  chooses  to  enter  into  a  contract  repre- 
senting it  and  agreeing  to  sell  it  as  his  own,  it  is  not  competent  to  him 
afterwards  to  say,  though  he  has  valuable  interests,  he  has  not  th6 
entirety,  and,  therefore,  the  purchaser  shall  not  have  the  benefit  of  his 
contract.  For  the  purpose  of  this  jurisdiction,  the  person  contracting 
under  those  circumstances,  is  bound  by  the  assertion  in  his  contract, 
516 


504  SPECIFIC   PERFORMANCE   OF  C0STRACT8. 

under  those  circumstances,  is  bound  by  the  assertion  in  his  contract. 

and  if  the  vendoo  chooses  to  t;ik(^  as  niiioh  as  he  can  liavc,  lie  has  a 
right  to  that  and  to  an  abatement,  and  the  court  will  not  hear  the 
objection  by  the  vendor,  tliat  the  ])urchaser  cannot  liave  the  whole. (1) 
There  are  exceptions  to  this  general  doctrine,  which  will  be  stated  in 
subsequent  paragraphs. 

Where  vendor  is  a  tenant  in  common  ;  vrhere  his  land  is  defi- 
cient in  amomit. 
Sec.  439.  The  foregoing  doctrine  has   been  applied  in  numerous 

(1)  In  Mortlock  ?'.  Buller,  10  Ves.  315  ;  also,  in  support  of  the  doctrine.  Lord 
Bolingbroke's  Case,  1  Sch.  &  Lef.  19,  n.  a;  Nelthorpe  v.  Holgate,  1  Coll.  203  ; 
Barrett  v.  Ring,  2  Sni.  &  (t.  43  ;  Wilson  v.  Williams,  3  Jur.  (N.  S.)  SIO  ;  Barnes  v. 
Wood,  L.  R.  8  E(i.  424  ;  Walters  v.  Ti-avis,  9  Johns.  450  ;  Morss  v.  Ehnendorf,  II 
Paige,  287 ;  Voorhees  v.  De  Myer,  3  Sandf.  Ch.  614  ;  2  Barb.  37  ;  Wiswall  v. 
McGowan,  1  Hoff.  Ch.  125  ;  Napier  v.  Darlington,  20  P.  F.  Smith,  64  ;  Erwin  v. 
Myers,  10  Wright,  96;  Clark  v.  Reins,  12  Gratt.  98,  112;  Nagle  v.  Newton,  22 
Gratt.  814  ;  Evans  v.  Kingsbei-ry,  2  Rand.  120  ;  Stockton  v.  Union  Oil  Co.,  4  W. 
Va.  273  ;  Jacobs  v.  Lock,  2  Ired.  Eq.  286 ;  Harbers  v.  Gadsden,  6  Rich.  Ec^.  284  ; 
Wetherford  v.  James,  2  Ala.  170 ;  Bass  v.  Gilliland,  5  Ala.  761 ;  Matthews  v.  Pat- 
terson, 2  How.  (Miss.)  729  ;  Jones  v.  Shackleford,  2  Bibb,  410  ;  Williams  v.  Cham- 
pion, 6  Hammond,  169  ;  McConnell  v.  Brilhart,  17  111.  354 ;  Beyer  v.  Marks,  2 
Sweeny,  715  ;  King  j'.  Ruckman,  5  C.  E.  Green,  316 ;  Spalding  v.  Alexander,  6 
Bush,  160  ;  Howard  v.  Kimball,  65  N.  C.  175  ;  Marshall  v.  Caldwell,  41  Cal.  611 ; 
Pigree  v.  Cofftii,  12  Grey,  316  ;  Gilbert  y  Peteler,  38  Barb.  517;  Luckett  v.  Wil- 
liam.son,  37  Mo.  388  ;  Bell  V.  Thompson,  34  Ala.  633;  Collins  v.  Smith,  1  Head, 
251  ;  Wright  v.  Young,  6  Wise.  127  ;  Ackerman  v.  Ackerman's  E.^c'rs,  9  C.  E. 
Green,  315  ;  Wilson  v.  Cox,  50  Miss.  133  ;  Zebley  v.  Sears,  38  Iowa,  507;  Harding 
V.  Parshall,  56  111.  219  ;  [,Bostwick  v.  Beach,  103  N.  Y.  414  ;  Burrow  v.  Scammeb 
19  Ch,  D.  175  ;  Roberts  v  Lovejoy,  60  Tex.  253,  257  ;  Docter  v.  Hellberg,  65  Wis. 
415,  421 ;  Swain  v.  Burnette,  76  Cal.  299 ;  Cochrane  v.  Justice  Mining  Co.  (Colo.), 
26  Pac.  Rep.  780  ;  Cotrell  v.  CotreM,  81  Ind.  87 ;  Beck  v.  Bridgman,  40  Ark.  382 ; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Beidler,  45  Ark.  17  ;  Reese  v.  Hoeckel,  58  Cal. 
281 ;  N.  Y.,  etc.,  Ry.  Co.  v.  Stanley,  35  N.  J.  Eq.  283 ;  Lancaster -u.  Roberts,  (111.) 
33  N.  E.  Rep.  27  ]  The  recent  case  of  Barnes  v.  Wood,  L.  R.  8  Eq.  4':4,  is  a 
very  strong  one.  The  plaintiff  A.  (the  vendee)  contracted  with  defendant  B.  for 
the  purchase  of  certain  i)ropei'ty  in  fee,  being  ignorant  that  B.  had  only  a  life 
estate,  and  that  C.  (B.'s  wife)  was  entitled  to  the  remainder  in  fee  on  the  deter- 
mination of  the  life  estate.  Defendant  D.,  with  full  knowledge  of  this  contract, 
took  a  conveyance  from  B.  and  C,  so  acknowledged  by  C.  as  to  pass  all  her  in- 
terest. A.  sues  for  a  specific  performance  against  B.  and  D.  Held,  entitled  to 
a  conveyance  from  D.  of  B.'s  interest,  with  compensation  in  i-espect  of  C.'s  (the 
wife's)  interest,  which  B.  would  have  been  unable  to  convey  without  her  consent — 
i.  e.,  an  abatement  from  the  piice.  It  should  be  noticed  that  A.  was  ignorant  of 
any  defect  in  B.'s  interest.  In  Waters  v.  Travis,  9  Johns.  450,  the  vendor  con- 
tracted to  sell  a  piece  of  land,  and  afterwards  conveyed  a  part  of  it  to  a  third 
person.  The  vendee  suing  for  a  specitic  jierformance,  the  vendor  (defendant) 
claimed  that  the  court  could  not  enforce  the  contract  which  the  jiarties  made,  and 
could  not  make  another  and  diflerent  one  for  them,  and.  therefore,  must  dismiss 
the  ])laintiff's  suit.  But  the  chancellor  and  the  court  of  erj-oi-s  held  that  defend- 
ant could  not  be  heard  to  allege  liisown  wrongful  act  as  a  reason  for  not  comply- 
ing with  till-  phiiiitiff'.s  (h'lnand,  which,  but  for  such  act.  would  have  been  without 
any  a.iswer,  and  that  the  purchaser  could  compel  a  conveyance  of  the  remaining^ 
portion  of  the  land  which  the  vendor  still  owned. 

517       . 


PARTIAL    PERFORMANCK,  AND    COMPENSATION:  505 

instances.  When  a  person  who  owns  only  an  undivided  sliare  of  a 
tract  of  land  enters  into  an  agreement  to  sell  the  wliole,  as  though 
he  was  owner  of  the  entirety,  to  a  purchaser  who  is  ignorant  of  any 
defect  in  the  title,  such  vendee  may  compel  a  conveyance  of  the  share 
which  the  vendor  actually  owns,  and  have  compensation  for  the  resi- 
due, or  he  may  rescind  the  agreement  at  his  election.  The  same  is 
true  where  there  is  a  material  deficiency  in  the  quantity  of  land  con- 
tracted to  be  sold,  unless  by  the  language  of  the  agreement  the  pur- 
chaser expressly  or  impliedly  assumes  the  risk  as  to  quantity. (1) 

(1)  Atty.-Gen.  v.  Day,  1  Ves.  Sen.  218;  1  V.  &  B.  SoS  ;  Western  t).  Russell,  3  V. 
&  B.  187 ;  Napier  v.  Darlington,  20  P.  F.  Smith,  64  ;  Clark  v.  Reins,  12  Gratt.  98. 
In  Erwin  v.  Myers,  10  Wrig-ht,  96,  the  doctrine  was  fully  stated  by  Strong,  J., 
with  a  reference  to  leading'  authorities,  and  I  quote  from  his  instructive  opinion. 
The  vendor  had  contracted  to  sell  the  whole  piece  of  land,  but  it  turned  out  that 
he  was  owner  of  only  an  undivided  half,  and  could  only  convey  that  part.  The 
judge  said  :  "The  vendee  may  rescind  the  contract,  or,  at  his  election,  may  bi-ing 
an  action  at  law  for  damages,  or  may  institute  a  suit  in  equity  to  enforce  specific 
performance.  His  position  is  not  to  be  confounded  with  that  of  a  vendor  praying- 
in  equity  for  a  specific  performance.  There  is  a  settled  distinction  between  the 
two  cases.  If  a  vendor  cannot  make  out  title  to  the  whole  of  the  subject-matter 
of  a  contract,  equity  will  not  compel  the  vendee  to  perform  pro  tanto.  But,  says 
Mr.  SuGDKN  (Sog.  on  Vendors,  193)  :  'When  a  vendee  seeks  a  specific  execution  of 
an  agreement,  there  is  much  greater  reason  for  affording  the  aid  of  the  coui-t  to  a 
purchaser  when  he  is  desirous  of  taking  the  part  to  which  title  can  be  made.  And 
a  purchaser  may,  in  some  cases,  insist  upon  having  the  jiart  of  an  estate  to  which. 
a  title  is  produced,  although  the  vendor  could  not  compel  him  to  purchase  it.* 
(The  language  of  Lord  Eldon,  in  Mortlock  '6.  Buller,  before  cited,  is  then  quoted.) 
In  Att.-Gen.  v.  Gower,  1  Ves.  Sen.  218,  where  tenants  in  common  had  contracted 
for  the  sale  of  their  estate,  and  one  of  them  died,  it  was  held  the  survivors  could 
not  compel  the  purchasers  to  take  their  shai'es.  But  the  converse  of  the  propo- 
sition was  denied,  and  it  was  held  the  purchasers  might  comi^el  the  survivoi-s  to 
convey  their  shares,  although  the  contract  could  not  be  executed  against  the 
heirs  of  the  deceased.  The  same  doctrine  was  laid  down  in  Wood  v.  Gi'ifRth,  1 
Sw.  54  ;  and  in  Milligan  v.  Cook,  16  Ves.  1,  specific  performance  was  decreed 
upon  the  bill  of  a  purchaser,  with  a  compensation  for  defect  of  title  by  a  reduction 
of  the  purchase-money.  In  Hill  •?).  Buckley,  17  Ves.  394,  Sir  Wm.  Grant,  M.  R., 
stated  the  rule  to  be  that,  where  a  misrepresentation  is  made  as  to  quantity, 
though  innocently,  the  purchaser  is  entitled  to  have  what  the  vendor  can  give,, 
with  an  abatement  out  of  the  purchase-money  for  so  much  as  the  quantity  falls- 
short  of  the  representation.  The  same  i-ule  of  specific  pei-formance  pro  tanto,  at 
the  suit  of  the  purchaser,  with  compensation  for  deficiency  by  abatement  of  the 
purchase-money,  was  acted  upon  in  Graham  v.  Oliver,  3  Beav.  124  ;  Nelthorjie  v. 
Holgate,  1  Coll.  203.  It  was,  also,  asserted  unanimously  by  the  N.  Y.  Court  of 
Erroi's,  in  Waters  v.  Travers,  9  Johns.  464.  It  is  too  strongly  fortified,  as  well  as 
founded  in  reason,  to  be  successfully  denied.  Hence  it  has  found  its  way  into  the 
best  text-books  as  an  established  doctrine.  Adams,  in  his  Treatise  on  Equity  (p. 
90),  lays  it  down  that,  in  favor  of  the  purchaser  the  rule  in  equity  is,  though  he 
cannot  have  a  partial  interest  forced  upon  him,  yet  if  he  entered  into  the  contract 
in  ignorance  of  the  vondor's  incapacity  to  give  him  the  whole,  and  chooses  after- 
wards to  take  as  much  as  he  can  get,  he  has  generally,  though  not  universally, 
the  right  to  insist  on  that,  with  compensation  for  the  defect.  He  adds,  the  defect 
must  be  one  admitting  of  compensation,  and  not  a  mei'e  matter  of  arbiti-ary  dam- 

518 


500  SPFAIFIC   I'RRFOHMAXCK    OF    <'0.\Th' AC'J S. 

Where  his  land  is   subject  to  easements,  or  to  outstanding 
dow^er. 

Sec.  440.  The   existence  of  easements  upon  tlic   land  in  t'arur  of 
third  persons,  or  of  other  similar  rights  which  conflict  with  those  of  the 

ages.  In  Story's  Ecxuity,  section  779,  the  general  rule  is  also  said  to  he  that  the  pur- 
chaser, if  he  chooses,  is  entitled  to  have  the  coutrivct  spccilically  j)ei'lornie(l  as  far 
as  the  vendor  can  perform  it,  and  to  have  an  abatement  out  of  the  pui-chiusc- 
money,  or  compensation  for  Any  deliciency  in  the  title,  (piantity,  quality,  d»!scrip- 
tion,  or  other  matters  touching  the  estate.  *  *  *  Thei-e  is  nothing  in  this 
general  rule  of  which  a  vendor  can  complain.  It  is  his  own  fault,  if  he  ha.s  assumed 
an  obligation  which  he  cannot  fultill.  It  cannot  be  inecjuitable  to  recjuii-e  him  to 
perform,  as  far  as  it  is  in  his  jiower,  and  being  in  a  court  of  equity,  a  di-cree  that 
he  make  compensation  for  all  that  he  fails  to  perform,  is  but  completing  what  the 
court  has  begun,  and  preventing  a  nniltiplicity  of  suits.  In  no  just  sense  can  it 
he  said  that  thus  a  new  contract  is  made  for  the  parties.  The  vendor  is  not  com- 
pelled to  convey  anything  which  he  did  not  agree  to  convey,  and  the  ven- 
dee pays  for  what  he  gets  accoi-ding  to  the  rate  established  by  the  agreement." 
In  Dale  v.  Lister,  cited  1(5  Ves.  7,  the  defendant  had  agreed  to  sell  certain  lease- 
hold lands,  to  which  he  represented  himself  as  absolutely  entitleil,  and  the  suit 
was  by  the  vendee  for  a  specitic  performance.  As  to  twenty-four  acres,  pai-t  of 
the  land,  the  defendant  was  not  absolutely  entitled,  but  had  only  an  interest  in 
them  for  his  own  life,  and  consequently  could  not  give  a  title  to  this  part  beyond 
his  own  life.  The  defendant  admitted  that  the  plaintiff  might  rescind  the  con- 
tract, but  contended  that  he  could  not  have  a  decree  without  paying  the  full  pri(!i', 
as  stipulated  in  the  contract.  The  court,  however,  granted  a  specitic  perform- 
ance, with  an  abatement  from  the  purchase-price.  Loi-d  Eldon  does  not  appear  to 
have  been  entirely  satisfied  with  this  decision.  See  his  remarks  in  Milligan  v. 
Cooke,  16  Ves.  1,  7,  8.  See,  also,  on  the  general  doctrine,  Hanlniry  r.  Litchfield, 
2  My.  &  K.  629  ;  Neale  v.  McKenzie,  1  Keen,  474;  Gi-aham  v.  Oliver,  3  Ueav.  124. 
The  i-ule,  as  remarked  in  some  of  the  foregoing  citations,  is  not  always  enforced, 
for,  under  some  circumstances,  it  would  be  inequitatjle.  Thus,  in  Wheatley  ii. 
Slade,  4  Sim.  126,  the  vendor  owning  9-16  of  an  estate,  agreed  by  mistake  to  sell 
the  whole  ;  and  Sir  L.  Shadwill,  V.  C,  held  that  he  would  not  decree  a  specific 
performance  as  to  the  9-16,  with  an  abatement  from  the  purchase-money,  as  a 
third  person  had  a  lien  upon  the  land  for  a  debt  which  would  exhaust  almost  all 
the  purchase-money  ;  and  see  Maw  v.  Topham,  19  Beav.  576.  If  the  contract 
contains  an  express  stipulation  that  it  is  to  be  void  in  case  of  a  partial  failure  of 
the  title,  or  a  deficiency  in  the  subject-matter,  or  any  other  inability  of  the  ven- 
dor to  convey  exactly  what  he  promised,  then,  of  course,  the  purchaser  cannot 
compel  a  specitic  performance  pj-o  tanto,  with  an  abatement  from  the  price.  Wil- 
liams V.  Edwards,  2  Sim.  78.  In  Hooper  v.  Smart,  L.  R.  IS  Eq.  683,  vendor 
agreed  to  convey  certain  land  for  6.0007.,  and  to  make  a  good  marketable  tith;  to 
the  whole.  The  completion  being  delayed,  the  vendee  sued  for  a  specifii-  ;>er- 
fcrmance,  when  it  was  found  that  vendo'-  owned  only  one-half  of  the;  land.  7/-  Id, 
per  Hall,  V.  C,  that  vendee  was  entitled  to  a  decree  for  the  half,  with  .-ui  .ab.i!e- 
ment  of  one-half  the  price.  In  Whittemore  ?).  Whiftemore,  L.  R.  8  Eq.  60:5,  the 
land  sold  was  described  as  7.')3  square  yards  ;  it  only  ccmtainc-d  .'■)73  sqn.-in'  yards. 
Held,  per  Mamns,  V.C,  that  the  vendee  was  entitled  to  an  abat(Mnent  from  the  price. 
The  leading  <-.i«<\  in  rosp.>c.t  to  a  deficiency  in  the  quantity  of  land,  is  Hill  v.  Buck- 
ley, 17  Ves.  394,  per  Sir  Wm.  Grant.  [It  seems  that  if  Ww.  ]inrcbai*er  is  aware  of 
the  vendor's  inability  to  convey  mor<^  than  the  undivided  shar<s  conveyance  of 
that  share  will  not  be  deci-eed :  see  Palmer  v.  (iould,  (N.  Y  )  39  N.  K.  Hep.  37S. 
(Jan.  15,  1895),  where  the  defendant  luuleilook  to  sell  her  interest  and  that  of  her  en- 
tenant,  making  no  representation  as  to  her  authority  to  l)ind  the  co-fenanfs  ;  specific, 
perfoi-mance  was  refused  on  tiit;  ground  of  lack  of  nuituality.  J 

019 


PARTIAL    PERFORMANCE,  AXD    COMPENSATION.  507 

owner,  and  which  would  prevent  a  vendor  from  forcing  an  acceptance 
iipon  an  unwilling  vendee,  will  entitle  the  purchaser  at  his  election  to 
insist  upon  a  conveyance  of  the  land  subject  to  these  rights,  with 
iiuch  compensation  or  abatement  from  the  price  as  shall  be  propor- 
tionate to  the  diminution  in  the  value  of  the  subject-matter.  As  for 
example,  when  the  land  is  found  to  be  subject  to  a  right  in  a  third 
person  to  dig  for  minerals  or  ores,  the  purchaser  can  demand  a  specific 
performance  with  compensation. (1)  If  the  land  is  subject  to  an  out- 
standing dower  right  of  some  widow,  so  that  only  two-thirds  can  be 
conveyed  in  possession,  and  the  other  one-third  iii  reversion  ui)on  the 
death  of  the  dowress,  the  equities  of  the  parties  have  been  adjusted 
in  some  of  the  decided  cases,  by  a  conveyance  of  the  entire  premises 
to  the  vendee,  and  by  his  present  payment  of  two-thirds  of  the 
purchase-price,  the  other  third  remaining  as  a  lien  on  the  land,  to  be 
jjaid,  without  interest,  at  the  widow's  death,  when  her  interest  would 
cease,  and  the  portion  which  had  been  held  under  it  would  come  into 
the  vendee's  possession. (2)  The  case  of  an  inchoate  dower  right 
resulting  from  the  refusal  of  the  vendor's  wife  to  join  with  him  in 
carrying  his  contract  into  execution  by  a  conveyance,  will  be  con- 
sidered in  a  subsequent  paragraph. 

"Where  he  cannot  give  a  lease  for  as  long  a  term  as  he  con- 
tracted. 

k5EC.  441.  When  a  person  has  contracted  to  grant  a  lease  for  a  certain 
length  of  time,  but  is  unable,  on  account  of  his  own  limited  interest 
or  lack  of  power,  to  give  a  lease  for  as  long  a  period  as  he  agreed,  the 
intended  lessee  may,  if  he  so  elect,  compel  the  lessor  to  execute  the 
lease  for  the  longest  term  which  his  estate  or  the  power  of  leasing 
under  which  he  acts,  will  permit,  and  will  also  be  entitled  to  com- 
pensation for  the  loss  which  he  sustains  by  the  inability  of  the  lessor 
to  fully  comply  with  the  terms  of  his  agreement. (3) 

Vendee  not  entitled  to  compensation  -when  he  had  notice  of 
the  defect. 

Hkc.  442.  Tlie  general  doctrine  stated  in  the  preceding  paragraph 
is  subject,  in  all  of  its  applications  to  particular  cases,  to  the  follow- 
ing most  important  limitation  :  If  the  vendee,  at  the  time  of  enter- 

(1)  Seaman  v.  Vavvdrey,  10  Ves.  390  ;  Peacock  v  Penson,  11  Beav.  355 ;  Painter 
XI.  Newby,  11  Hare,  26;  [Anderson  v.  Kennedy,  51  Mich.  467.]  In  Downer  v. 
Church,  44  N.  Y.  647,  a  person  holding  land  Ly  devise,  "subject  to  the  support 
and  maintenance  of  "  a  third  person,  entered  into  a  contract  to  sell  it.  Held,  that 
his  conti-act  could  be  enforced,  and  he  could  be  comjielled  to  convey  what  title  he 
had.  As  to  enforcement  of  contracts  to  convey  when  the  land  is  incumbered,  see 
Lesley  v.  Morris,  0  Phila.  110. 

(2)  Wingate  v.  Hamilton,  7  Ind.  73 ;  Hazelrig  v.  Hutson,  18  Ind.  4S1  ;  Springle 
1).  Shields,  17  ^ln.  295  ;  but  see  Young  •?'.  Paul,  2  Stockt.  Ch.  402;  Troutman  •». 
Gowing,  16  Iowa,  415.  In  Zebley  v.  Sears,  38  Iowa,  507,  it  was  held  that  the  vendee, 
in  such  case,  had  an  election  to  take  a  deed  from  the  vendor  alone,  and  sue  for 
<lama,ges  for  the  breach  of  the  contract ;  or  to  take  the  deed  and  retain  a  pro- 
]iortionate  part  of  the  pi'ice  ;  and  see  Heimburg  v.  Ismay,  35  N.  Y.  Supei*.  Ct. 
35.     This  is  not  the  rule  in  some  states. 

(3)  Leslie  v.  Crommeliii,  2  I.  R.  E^i.  131.  140. 

520 


508  SPECIFIC   PERFOh'MAXCK    OF  COXTIfACTS. 

ing  into  the  contract,  knows  or  is  sufficicMitly  inrornied  tliat  the 
vendor's  title  is  defective,  or  that  his  interest  is  partial,  or  that  the 
snbject-matter  is  deficient,  he  is  not  entitled  to  any  compensation  ;  if 
he  insists  upon  a  conveyance  of  \vhat  the  vendor  can  ^^ivc,  lie  must 
pay  the  full  price  stipulated  ;  and  the  vendor  may,  i)erhai»s,  force  a 
specific  performance  n})on  him  without  coi^i)ensation.(l) 

This  limitation  includes  cases,  not  only  where  the  vendor  has 
received  positive  notice  or  information  by  direct  communication,  but 
also  where  the  defects  in  the  subject-matter  were  patent,  plainly 
visible  to  every  ordinary  observer,  and  such  that  the  vendee  might 
have  seen  them  in  the  exercise  of  his  ordinary  faculties  of  observa- 
tion. (2)  But,  in  order  that  the  right  of  compensation  may  be  thus 
cut  off,  the  defect  must  be  plainly  visible  to  all  persons,  and  must, 

(1)  Peeler  v.  Levy,  26  N.  J.  Eq.  330 ;  Franz  v.  Orton,  75  111.  100 ;  [Lucas  v. 
Scott,  41  Ohio  St  636;  Knox  v.  Spratt,  23  Fla.  64.]  In  such  a  case  the 
vendee  is  regarded  as  agreeing-  to  buy  whatever  interest  the  vendor  has  and 
is  able  to  convey.  His  knowledge  or  notice  of  all  the  facts  enters  into  the 
contract,  and  prevents  him  from  asserting  a  right  to  an  exact  fultillment  of  its 
terms,  which  he  knew  fi-om  the  beginning  to  be  impracticable.  Lawrenson  v. 
Butler,  1  Sch.  &  Lef.  13;  Mortlock  v.  Biiller,  10  Ves.  292;  Coiyei-  v.  Clay,  7 
Beav.  189  ;  Ilarnet  v.  Yielding,  2  Sch.  &  Let'.  549.  In  Castle  v.  Wilkinson,  L.  R. 
6  Ch.  534,  a  husband  and  wife  agi-eed  to  sell  the  wife's  estate  in  fee  sinijjle,  the 
vendee  knowing  that  it  was  the  wife's  pi-opei-ty.  She  refused  to  convey ;  the 
vendee  sued  the  husband,  asking  that  he  might  be  comjielled  to  convey  his  life 
interest,  and  accept  a  reduced  price.  Held,  that  the  vendee  was  not  entitled  to 
this  relief.  Lord  Chancellor  Hatherly  said  :  '*  On  the  face  of  the  agreement  the 
husband  and  wife  intended  to  sell  and  the  purchaser  knew  that  he  was  conti-act- 
ing  witli  them  for  the  estate  of  the  wife,  and  that  he  could  only  get  what  the  wife 
was  willing  to  con\'ey  ;  and  there  is  no  authority  at  all  ajipi-oaching  to  such  a 
proposition  as  it  has  been  necessary  to  contend  for  hei-e,  that  the  husband  can  be 
compelled  to  part  with  his  partial  interest  in  the  estate,  the  agreement  being  by 
him  and  his  wife  to  convey  the  whole.  The  latest  authority,  (Barnes  v.  Wood, 
L.  R.  8  Eq.  424,  before  V.  C.  Jambs),  is  in  sti-ict  conformity  with  the  othei-  authori- 
ties, *  *  *  namely,  that  when  a  man  proposes  to  convey  the  whole  of  an 
estate,  as  owner  of  the  fee  simple,  and  it  turns  out  that  he  is  only  entitled  pur 
autre  vie,  and  that  his  wife  has  the  remainder,  then  the  court  can  in.sist  on  his 
making  good  his  contract  to  the  extent  to  which  he  is  able  to  make  it  goo<l,  and 
he  must  submit  to  an  abatement  of  the  consideration  to  be  paid  for  that  wiiich  he 
improperly  alleged  he  was  capable  of  selling.  Since  the  case  of  Emery  v.  Wiuse, 
5  Ves.  846,  the  whole  mattei-  has  been  settled  ;  and  as  the  purchaser  has  cho.sen 
to  tile  his  bill  with  a  full  knowledge  of  the  law  and  the  facts,  his  bill  must  be 
dismissed."  This  case  is  quite  like  that  of  Barnes  v.  Wood,  supra,  and  fully 
stated  in  a  former  note,  with  the  one  controlling  difference,  that  hei-e  the  vendee 
kneio  that  the  land  belonged  to  the  wife,  while  in  Barnes  v.  Wood  he  was  ignorant 
of  that  fact,  and  supposed  it  belonged  to  the  husband,  with  whom  he  contracted. 
On  this  difference  in  the  fact  tni-ned  the  difference  in  the  two  decisions. 

(2)  Dyer   v.   Hnrgrave.   10  Ves.   505;   Oldfield  v.  Round,.".   Ves.   50S ;  Pope  tx 
Garland,  4  Y.  &  C.  Ex.  404. 

521 


PARTIAL    rEEFORMA.YCE,  AND    COMPENSATION.  509 

therefore,  exist  in  some  manner  or  form  in  the  corpus  of  the  subject- 
matter — it  would  seem  from  the  cases  that  the  observer  should  be 
able  to  see  and  comprehend  at  sight  the  full  extent  and  scope  of  the 
defect.  (1) 

Sec:  443.  On  the  same  jmnciple  it  is  well  settled  that  if  the  pur- 
chaser, at  the  time  of  the  contracr,  lias  constructive  notice  of  the 
defect,  or  other  facts  which  will  prevent  a  compliance  by  the  vendor 
•with  all  the  terms  of  the  agreement,  he  loses  all  right  to  compensa- 
tion ;  if  he  enters  into  the  contract  after  such  constructive  notice,  the 
effect  u[)on  his  rights  is  the  same  as  though  he  had  received  positive 
and  direct  information.  While  this  rule  is  true,  and  recognized  by 
all  the  authorities,  there  is,  perhaps,  some  conflict  of  decision  as  to 
what  constitutes  such  a  notice. (2) 

(1)  Grant  v.  Munt,  Cooper,  173,  case  where  dry  rot  in  a  house  was  held  not  tc^ 
be  svich  a  patent  defect.  King  v.  Wilson,  6  Beav.  124,  a  tenant  in  possession  of  a 
lot  which  he  pni-chased,  and  which  was  represented  to  be  forty-six  feet  deep  in 
the  contract  of  purchase,  but  which  was  only  thirty-three  feet  deep ;  held  not 
chargeable  with  knowledge  of  the  true  size.     And  see  other  cases,  ante,  §  223. 

(2)  In  James  v.  Lichfield,  L.  R.  9  Eq.  51,  land  was  contracted  to  be  sold  which 
the  vendee  knew  to  be  in  the  occupation  of  a  tenant,  and  afterwards  discovered 
that  the  tenant  had  a  lease  for  twenty-one  yeaj-s.  Vendee  sues  for  a  specific  per- 
foiTuance  with  compensation.  Held,  that  he  had  constructive  notice  of  the  lease, 
and  was  not  entitled  to  any  compensation^i.  e.,  any  abatement  from  the  price. 
Lord  RoMiLLY,  M.  R.,  said  :  "  If  the  purchaser,  knowing  of  the  tenancy,  is  bound 
to  inquire  as  regards  the  tenant  as  to  his  interest  in  the  land,  and  if  the  purchaser 
must  be  taken  to  be  bound  to  know  what  would  be  the  result  of  such  inquiry  as 
regards  the  tenant,  why  should  he  not  be  bound  as  regards  the  vendor?  And  if 
the  purchaser  chooses  to  bind  himself  by  agreement  with  this  vendor,  knowing  of 
the  tenancy,  but  without  having  accurately  ascertained  what  was  the  extent  and 
character  of  it,  and  what  the  results  of  such  inquiry  would  have  led  to,  he  must, 
as  it  appears  to  me,  be  bound  in  the  same  manner  as  regards  all  other  persons.  I 
think,  also,  that  no  distinction  can  properly  be  drawn  in  a  court  of  equity  on  the 
ground  that  the  matter  i-ests  in  contract,  and  that  the  convey.ance  of  the  legal 
estate  has  not  been  made  to  him.  The  purchaser  bound  himself  by  the  contract. 
He  must  be  taken  to  have  had  present  to  his  mind  all  those  things  of  which  he 
had  notice,  and  those  things  which  necessarily  flowed  from,  and  even  incidental 
to,  that  notice.  He  knew  that  Allen  was  tenant  of  this  land  ;  he  was  bound  to 
inquire  what  the  tenancy  was,  unless  he  was  willing  to  be  bound  by  the  tenancy 
whatever  it  was.  The  bill  must  be  dismissed,  with  costs,  unless  the  plaintiff"  elects 
to  take  the  i)roperty  without  compensation."  See,  al.«o,  In  re  Ryan's  Estate,  3 
I.  R.  Eq.  255.  See,  also,  the  somewhat  similar  case  of  Franz  v.  Orton,  75  III. 
100,  in  which  the  actual  occupation  of  the  land  by  tenants  of  a  third  person,  was 
held  to  be  constructive  notice  to  the  vendee.  The  decision  of  Lord  Romilly,  in 
the  case  of  James  v.  Lichfield,  can  hardly  be  reconciled  with  a  more  recent  deci- 
sion of  Sir  J.  JE.SSBL,  M.  R.,  and  the  court  of  appeal,  in  Caliallero  v.  Henty,  L.  R. 
9  Ch.  447,  upon  a  state  of  facts  altogether  similar.  A  public  house  was  sold,  and 
the  conditions  of  sale  stated  that  it  was  "in  the  occupation   of  a  tenant."     The 

523 


610  SI'KC/FK'    I'KliFunMA^CE    OF   CO.XTJri  CTS. 

Nor  -where  he  is  negligent. 

iSec.  444.  The  purchaser  may  also  cut  of  his  ri^ht  to  any  compen- 
sation for  a  clcfect  in  title,  or  in  the  subject-mat trr,  l>y  liis  unreason- 
ably negligent  conduct,  or  omission  to  use  ordinary  jirudenco  in  mak- 
ing the  purchase.  Thus,  where  the  defect  would  have  been  easily 
discovered  if  the  purchase^'  had  used  the  ,care  and  forethought  of  an 
ordinarily  prudent  man,  and  l>y  simply  m;iking  reasonable  and  proper 
inquiries  about  the  state  and  condition  of  the  ])roperty,  and  he  neg- 
lects to  use  such  care,  and  omits  to  make  any  inquiries,  he  thereby 
precludes  himself  from  the  right  to  claim  compensation,  for  equity 
will  not  aid  persons  Avho  have  been  unreasonably  careless.  A  man 
cannot  rush  headlong,  and  with  his  eyes  shut  into  a  bargain,  and 
then  require  the  court  to  relieve  him  from  the  consequences  of  his 
own  foolishness.(l)     And  the  court  will  not  always  allow  a  purchaser 

vendee,  a  brewer,  boiiglit  it  intending- to  use  it  for  the  sale  of  his  beer.  He  found 
thiit  it  was  under  a  lease  to  another  brewer  for  a  term  of  which  eig-ht  yeai-s 
remained.  The  vendor,  suing-,  held  by  the  M.  R.  and  on  ajipeal,  that  the  vendee 
was  not  bound  to  ascertain  from  the-  tenant  the  terms  of  his  tenancy — that  is, 
that  the  language  of  the  condition  was  not  a  constructive  notice,  and  that  vendor 
was  not  entitled  to  enforce  a  specific  performance  without  making  compensation. 
James  v.  Lichfield  was  i-elied  uoon  by  the  jilaintiff  as  decisive  ;  but  the  court  must, 
I  think,  be  considered  as  virtually  overruling  that  case,  for  they  denied,  i7i  t^to, 
the  correctness  of  the  reasoning  U2)on  which  Lord  Romilly  had  rested  his  decision. 
He  said  that  as  the  purchaser  was  bound  to  know,  as  between  himself  and  the 
tenant,  the  tei-ms  of  the  tenancy,  so  he  was  bound  to  know  them  as  between  him- 
self and  the  vendor.  This  the  court  denied,  and  said  that  this  doctrine,  which  is 
laid  down  in  Daniels  v.  Davison,  16  Ves.  249,  does  not  apply  as  between  the  ven- 
dor and  vendee,  while  the  matter  still  rests  in  contract,  and  that  it  i-efei's  only  to 
the  equities  between  the  vendee  and  the  tenant  after  the  legal  estate  has  passed  to 
the  vendee.  So,  although  the  court  did  not,  in  express  terms,  overrule  James  v. 
Lichfield,  they  ovei'turned  the  entire  basis  of  legal  doctrine  upon  which  its 
decision  was  based,  and  in  my  opinion  destroyed  its  authority  on  the  point  that  a 
vendee,  knowing  that  the  land  is  in  possession  of  a  tenant,  has  thereby  a  construc- 
tive notice  of  the  nature  and  length  of  the  tenancy,  and  is  bound  to  complete  with- 
out compensation.     See,  also,  Hughes  v.  Jones,  3  DeCl.  F.  &  J.  307. 

(1)  Edwards- Wood  v.  Marjoribanks,  1  Gitf.  384 ;  3  DeiGr.  &  J.  329  ;  7  H.  L.  Cas. 
806.  In  this  case  an  agreement  was  made  for  the  sale  of  an  advowson,  the  ven- 
dee voluntarily  offering  2,800L,  which  was  accepted.  The  contract  said  nothing 
as  to  the  income  of  the  living,  mn'  xms  any  question  asked  by  the  jpurchaser,  nor  any 
representation  made  by  the  vendors  on  Ifhat  subject  during  the  negotiation.  The 
title  was  perfect  and  accepted,  but  before  completion  the  purchaser  found  that 
the  income  of  the  living  W'as  chaj'ged  with  the  repayment  of  a  sum  of  money  bor- 
rowed from  Queen  Ann's  bounty  for  rebuilding  the  parsonage,  of  wiiicli  the  ven- 
dors were  aware.  The  vendee  demanded  an  abatement  of  the  price,  and  on  this 
being  i-efused,  he  sued  for  a  specific  perfoi-mance  with  compensation.  Held  by  the 
V.  C.  Stuakt,  and  on  appeal,  and  by  the  House  of  Lords,  that  he  was  not  entitled 
to  any  compensation.  Lord  J.  KxHaiT-BiniCE,  after  desci-ibing  in  very  plain 
terms,  the  position  taken  by  the  ])laintiff,  says  (page  332)  :     "At  the  time  neither 

523 


PARTIAL    PERFORMANCE,  AKD    CCMI'EySATION:  SU 

•compensation  when  there  is  a  deficiency  in  the  quantity  of  the  land 

contracted  to  be  sold,  even  when  the  tcymri  of  the  agreement  are  not 
such  that  he  expressly  takes  tlic  risk  of  the  quantity  l»y  buying  with 
a  description  by  metes  and  bounds,  or  otherwise.  In  general,  the 
purchaser  is  entitled  to  compensation  for  a  deficiency,  except  where 
the  language  of  the  agreement  cuts  off  liis  claim;  but  tliis  rule  is  some- 
times, from  the  circumstances  of  the  case,  departed  from,  and  the  vendee 
left  to  the  alternative  of  abandoning  the  contract  entirely,  or  of  having 
a  specific  performance  without  any  abatement  from  the  price. (1) 

of  the  treaty  nor  of  the  contract,  is  the  income  of  the  benetice  mentioned.  The 
purchaser  oflers  a  certain  sum,  not  informing-  the  vendors  on  what  basis  of  cal- 
culation the  offer  is  founded.  The  vendors  accept  the  offer,  and  in  my  .view  they 
were  not  guilty  of  the  least  impropriety  of  conduct,  or  of  the  least  breach  of  duty 
in  doing  so  without  mentioning  the  charge,  assuming  them  all  to  have  been  aware 
of  its  exis<ence.  Had  they  been  asked  a  question,  or  if  they  had  any  reason  to 
believe  the  purchaser  misled,  or  ignorant  of  the  circumstances  of  the  property, 
they  might  have  been  bound  to  make  compensation.  But  not  one  of  these  cir- 
cumstances exists  here.  For  aught  that  appears,  each  vendor  had  reason  to 
believe  that  the  purchaser  knew  every  circumstance  connected  with  the  property. 
If  be  did  not,  why  did  he  not  make  inquiry  1  He  might  have  applied  to  the 
incumbent,  to  the  parisli  clerk,  to  the  church  wardens,  to  any  one  acquainted  with 
the  parish  business.  He  might  have  gone  to  the  office  of  Queen  Ann's  bounty. 
To  that  office  he  does  go,  apparently  of  his  own  accord,  after  entering  into  the 
contract.  Why  did  he  not  go  before,  if  the  matter  was  of  interest  to  him  ?  Though 
he  had  been  a  man  of  business,  he  shuts  his  eyes  against  what  he  migli,t  have 
ascertained  by  opening  them.  This  was  not  a  concealed  incumbrance,  not  a 
latent  vice,  but  a  charge  to  which  he  must  have  known  that  by  the  general  law, 
every  living  is  liable,  and  to  which  he  might  have  ascertained  by  the  easiest 
inquiry,  that  this  living  was  subject."  Lord  J.  Turner,  after  agreeing  with  these 
views,  added  a  qwBre,  whether  the  doctrine  of  compensation  ever  applies  in  cases 
where,  if  the  purchaser  does  not  resell,  he  can  sustain  no  loss  from  the  defect  in 
the  title  or  subject-matter?  In  other  words,  where  the  defect  can  produce  loss  to 
the  purchaser  only  in  case  he  resells  the  property,  quCBre,  whether  compensation 
can  ever  be  given  1 

(1)  Earl  of  Durham  v.  Legard,  34  L.  J.  (N.  S.)  Ch.  589.  The  vendor  agreed  to 
sell  an  estate  which  both  pai"ties  supposed,  and  which  was  stated  in  the  contract 
to  contain  21,750  acres,  but  which  in  fact  contained  11,814  acres.  The  vendee  sued 
for  a  specific  performance  with  compensation,  but  held  that  he  was  not  entitled  to 
that  relief  under  the  circumstances  of  the  case  ;  but,  of  course,,  that  he  might 
abandon  the  contract.  Sir  J.  Romilly,  M.  R.,  said  :  "In  the  case  of  Hill  v.  Buck- 
ley, 17  Ves.  394,  which  is  usually  cited  upon  these  occasions.  Sir  "Wm.  Grant 
laid  it  down  that  where  there  is  less  land  than  was  agreed  to  be  sold,  the  ordinary 
mode  of  settling  it  is  to  ascertain  the  quantity  and  take  it  ratably.  If  that  were 
done  here,  the  plaintiff  would  get  an  estate  which  he  had  intended  to  buy  for 
66,000Z.  for  about  33,000/.  If  this  principle  were  to  be  followed  in  the  present 
case,  *  *  it  is  clear  I  should  be  doing  great  injustice.  I  am  of  opinion  that 
this  is  a  case  simply  of  mistake,  and  that  the  purchaser  is  not  entitled  to  any 
compensation."  He  was  allowed  to  elect  whether  to  perform  the  conti-act  without 
abatement,  or  to  abandon  his  suit  entirely.  [See,  also,  Chicago,  M.  &  St.  P.  Ry. 
Co.  V.  Durant,  44  Minn.  3()i.] 

524 


512  SI'ECIFIV  rKliFOi;MAM'E    OF   COM Ii! ACTS. 

Stipulation  in  contract  preventing  compensation. 

Sec.  445.  The  right,  to  any  ('()nii)eii8atiou  iiuiy,  of  course,  be  waived, 
or  renounced  by  ex[)ress  stipulation  contained  in  the  contract  dl' sale. 
Several  ditferent  forms  of  these  provisions  seem  to  have  become  (juite 
common  in  EngUmd,  and  have  received  a  judicial  construction.  They 
are  sometimes  confined  to  errors  in  the  quantity  or  descrijition  of  the 
land,  and  are  sometimes  extended  to  defects  or  partial  failuies  in  the 
title,  incumbrances,  and  the  like.  Where  such  a  stipulation  is  plain 
and  express  in  its  langnage,  and  th(M'e  lias  been  no  intentional  mis- 
description, or  other  fraudulent  conduct  of  the  vendor,  full  elfect  will 
be  given  to  it  by  the  court,  as  to  all  matters  which,  it  is  reasonable  to 
suppose,  were  intended  to  be  embraced  witliin  its  restrictice  terms. (\)  But 
such  a  stipulation,  cutting  off  compensation  for  errors  in  descri[)tion  or 
defects  in  the  quantity  of  the  subject-matter,  will  be  construed  as 
intended  to  apply  only  to  comparatively  small  errors  and  defects,  and 
for  really  substantial  errors  or  defects  the  purchaser  is  still  entitled  to 
compensation  according  to  the  general  doctrines  on  the  subject 
adopted  by  the  court. (2) 

Sec.  446.  Another  form  of  stipulation,  which  is  not  uncommon  in 
England,  is  substantially  the  following,  that  the  vendor  may  rescind 
the  contract  if  the  vendee  makes  and  persists  in  any  objection  to  the 
title,  or  if  the  vendee  makes  any  requisition  in  respect  of  the  title 
with  which  the  vendor  is  "  unable  or  unwilling  "  to  comply ;  or,  in  other 
words,  if  the  vendor  is  unable  or  even  unwilling  to  go  on  and  take  the 
necessary  steps  to  show  a  good  title.  The  courts  will,  under  ordinary 
circumstances,  give  effect  to  such  a  stipulation  by  allowing  the 
vendor  to  rescind,  w'here  the  i)()sition  of  the  parties  which  it  contem- 
plates and  provides  for,  has  been  actually  reached.  He  may  even 
rescind,  although  he  might  be  able  to  make  out  and  show  a  i)erfect 
title,  since  one  object  of  the  stii)ulation  is  to  relieve  him  from  the 
expense,  labor,  and  difficulty  which  might  be  required  on  his  part  in 

(1)  Cordingley  v.  Cheeseborong-h,  3  Giff.  496  ;  31  L.  J.  (Ch.)  (UT.  The  stipula- 
tion was  that  "  the  admeasurements  are  presumed  to  be  correct,  but  if  any  error 
be  discovered  therein,  no  allowance  shall  be  made  or  required  either  way."  The 
vendee  sued  for  a  specific  pei-formance  with  compensation  on  account  of  an  error, 
and  specific  ])erforniai)ce  was  decreed  without  compensation,  and  the  piaintift 
was  compelled  to  pay  the  costs.     See,  also,  Nicoll  v.  Chaml)ers,  11  C.  B.  090. 

(2)  Thus,  in  Whittemore  v.  Whittemore,  L.  R.  8  Eq.  (503,  the  contract  contained 
a  provision  that  "  if  any  error,  misstatement  or  omission  in  th(»  description  of  the 
premises  should  be  discovei-ed,  it  should  not  annul  the  sale  nor  should  any  com- 
pensation he  allowed  by  the  vendor  or  purchaser  thei-efor."  The  land  was  stated 
to  contain  and  sold  as  containing-  7.')3  square  yards,  but  only  contained  r)"3s(piare 
yards.  Held,  by  Malins.  V.  C,  that  the  ju-ovision  only  ajiplied  to  small  errors^ 
*nd  the  vendee  was  entitled  to  comjiensation. 

525 


PARTIAL   PEHFORMANCE,  AND    COMPENSATION.  513 

order  to  perfect  his  title  to  the  satisfaction  of  the  purchaser.(l)  The 
vendor,  if  he  elects  to  take  advantage  of  the  provision,  must  give 
timely  notice  of  his  rescission.  The  vendor  may,  by  his  own  conduct 
either  before  or  after  making  the  contract,  eitlier  destroy  or  waive  all 
right  to  avail  himself  of  the  stipulation  and  to  rescind  the  contract, 
and  it  would  seem  that  the  court  will  scrutinize  his  acts  and  omis- 
sions very  strictly  in  this  respect. (2) 

(1)  Duddell  V.  Simpson,  L.  R.  2  Ch.  102;  reversing  S.  C,  L.  R.  1  Eq.  578; 
Mawson  v.  Fletcher,  L.  R.  6  Ch.  91  ;  L.  R.  10  Eq.  213  ;  Greaves  •«. Wilson,  25  Beav. 
290  ;  Page  v.  Adam,  4  Beav.  269  ;  Nelthorpe  v.  Holgate,  1  Coll.  203 ;  Painter  v. 
Newby,  11  Hare,  26  ;  Turpin  v.  Chambers,  29  Beav.  104  ;  Hoy  v.  Smythies,  22 
Beav.  510  ;  Williams  v.  Edwards,  %  Sim.  78.  In  Duddell  v.  Simpson,  L.  R.  1  Eq. 
578,  the  stipulation  authorized  the  vendor  to  rescind  in  case  the  vendee  should 
insist  on  any  requisition  as  to  title  with  which  the  vendor  should  be  unable  or  unwil- 
ling to  comply.  Vendee  made  a  requisition  with  which  the  vendor  was  unable 
•or  unwilling  to  comply,  and  vendor  gave  notice  of  rescission.    The  vendee  then 

wholly  waived  his  requisition.  Held,  that  vendor  was  not  justified  in  rescinding 
-when  the  vendee,  after  learning  that  the  vendor  was  unable  or  unwilling  to  com- 
ply, waived  the  requisition,  and  a  specific  performance  was  decreed.  But  this 
decision  was  reversed  by  the  court  of  appeal,  L.  R.  2  Ch.  102,  which  held  that  the 
vendor  had  a  right  to  rescind,  giving  effect  to  the  word  "unwilling"  which  the 
couTt  below  had  overlooked  or  treated  as  of  no  consequence.  In  Mawson  v.  Flet- 
cher, supra,  the  stipulation  was  that  if  any  objection  to  the  title  was  persisted  in 
the  vendor  might  rescind.  The  vendee  made  an  objection  and  persisted  in  it. 
Vendor  gave  notice  of  rescission.  Vendee  sued  for  a  specific  jierformance  with 
compensation.  Vendor  answered  that  he  had  a  good  title,  but  that  he  had 
rescinded.  Held,  that  vendor  might  rescind  although  he  could  make  a  good 
title,  since  the  removal  of  the  objection,  and  showing  a  perfect  title  would  require 
a  long  and  expensive  inquiry,  from  which  the  stipulation  gave  him  the  right  to 
escape  if  he  so  elected  ;  and  a  specific  performance  with  compensation  was  refused. 

(2)  It  has  been  held  that  the  vendor  acquires  no  right  under  such  a  provision  to 
rescind  the  contract,  in  the  following  cases  :  Where,  at  the  time  of  making  the 
•contract  of  sale,  he  knew  that  his  title  to  the  subject-matter,  or  to  a  part  of  it, 
was  defective  ;  for  such  a  contract  would  be  so  unfair  and  one-sided  as  to  be  vir- 
tually fraudulent.  Nelthorpe  v.  Holgate,  1  Coll.  203;  but  seeThoma.s  ■«.  Bering, 
1  Keen,  729  ;  and,  a  fortiori,  where  he  had  knowingly  and  intentionally  made 
misrepresentations  concerning  the  subject-matter.  Price  v.  Macaulay,  2  De  G, 
M.  &  G.  347  ;  and  where  the  vendee  is  willing  to  waive  all  objections  to  the  title, 
and  to  accept  a  conveyance  without  any  deduction  from  the  price.  Page  v. 
Adam,  4  Beav.  269  ;  Williams  v.  Edwards,  2  Sim.  78.  But  it  would  seem,  from 
the  case  of  Duddell  v.  Simjjson,  supra,  that  the  vendee  must  signify  his  intention 
of  waiving  objections  and  taking  the  title  as  it  is,  before  he  has  presented  any 
objection,  and  the  vendor  has  thereupon  given  notice  of  rescission  ;  if  the  vendee 
has  objected  and  the  vendor  has  replied  thereto  by  a  notice  of  rescission,  it  does 
not  seem  just  that  the  vendee  should  then  be  able  to  waive  his  own  objection  and 
enforce  a  specific  performance  ;  at  all  events,  where  the  stipulation  enables  the 
vendor  to  rescind  if  he  is  "  unwilling  "  to  make  a  good  title.  It  has  also  been 
held  that  the  vendor  waives  his  right  to  rescind  in  the  following  cases  :  Where, 
instead  of  giving  notice  of  rescission,  he   replies  to  the  vendee's  objections  and 

526 


514  iirECIFIC   rKRtOR.MA.\CE    OF   LONTliACTS. 

Compensation  not  given  -when  vendee  has  made  misreprcser- 
tations,  nor  \vhen  it  would  be  injmio :  s  to  third  persons. 

Sec.  447.  A  partial  ;>pecilic  jxMrdriiiancc  at  tlif  Miit  di"  ilie  vendee 
may  be  refused  on  the  *rn)nii(l  that  an  eul'orci'iiu'iit  of  tlic  cimtract 
would  be  injurious  to  persons  liaving  interests  in  the  land^  sucli  as 
estates  therein  subsequent  to  that  of  the  vendor,  but  who  are  neither 
])arties  to  the  agreement  iior  to  the  suit.(l)  If  the  purcliaser  has  been 
guilty  of  misrepresentations  in  procuring  the  contract  to  be  made,  the 
court  will  not  grant  him  a  partial  speciiic  performance,  even  if  he  is 
willing  to  accept  a  conveyance  of  tlie  subject-matter  subject  to  its  de- 
fects of  title,  or  to  outstanding  interests  in  it  which  may  exist  in  favor 
of  third  persons,  and  to  waive  all  claim  to  C(»mp(msation.(2)  And  on 
the  same  principle,  if  the  vendee,  when  entering  into  tlie  contract, 
has  suppressed  or  concealed  any  material  fact  concerning  or  con- 
nected w4th  the  subject-matter,  which  was  within  his  own  knowledge, 
and  w4iich  ought  in  good  faith  to  have  been  comminiicated  to  the 
vendor,  he  will  not  be  entitled  to  a  si)ecific  performance,  either  partial 
or  entire. (3) 

i-equisitions,  and  thus  shows  an  intention  of  g'oing-  on  with  the  neg'otiation,  and 
not  of  bringing  it  to  a  sudden  end.  Tanner  v.  Smith,  10  Sim.  410  ;  McCulloch 
V.  Gregory,  1  K.  &  J.  294  ;  miless  his  repUes  are  expressly  to  be  without  preju- 
dice to  his  right,  Morley  v.  Cook,  2  Hare,  111 ;  and  generally  where  his  conduct 
is  confirmatory  of  the  conti-act,  or  inconsistent  with  any  other  position  than  that  of 
acquiescing  in  it.  Cole  v.  Gibbons,  3  P.  Wms.  290  ;  Atwood  v.  Small,  6  CI.  & 
Fin.  424,  432  ;  Flint  v.  Woodin,  9  Hare,  618. 

(1)  Thomas  v.  Bering,  1  Keen,  729  ;  Graham  v.  Oliver,  3  Beav.  124  ;  Beeston  v. 
Stutely,  27  L.  J.  Ch.  15G  ;  G  W.  R.  206. 

(2)  Clermont  v.  Tasbury,  IJ.  &  W.  112. 

(3)  The  recent  case  of  Phillips  v.  Homfray,  L.  R.  6  Ch.  770,  illustrates  this 
principle  in  a  very  emphatic  manner,  since  no  pecuniary  loss  could  have  resulted 
from  the  concealment.  The  plaintiff,  owner  of  a  colliery,  conti-acted  to  purchase 
an  adjoining  tract  of  land  which  also  contained  coal.  The  vendee  had  already, 
without  the  vendor's  knowledge  and  without  authority,  taken  a  considerable 
quantity  of  coal  from  the  vendor's  land,  of  coui-se  at  points  below  the  surface, 
and  this  fact  was  not  disclosed  by  the  vendee.  There  was  not,  however,  any 
undervaluation  of  the  land  sold  in  the  conti-act ;  that  is,  the  vendee  agi-eed  to 
pay  a  sum  which  would  have  been  a  fair  price  for  the  land  had  all  the  coal  re- 
mained untouched,  so  that  in  reality  the  purchaser  agreed  to  pay  for  the  coal 
which  he  had  already  taken.  Nevertheless,  on  a  suit  by  the  vendee  for  a  specific 
performance,  the  court  of  appeal  (Lord  Ch.  Hathbrly  affirming  the  decision  of 
V.  C.  Stuart),  held  that  the  contract  crould  not  be  enforced.  Lord  Hathehly  said  : 
*'  If  a  man  knows  that  he  has  coinniitted  trespa.ss  of  a  very  serious  character  upon 
his  neighbor's  ]iroperty,  and  finding  it  convenient  to  screen  himself  from  the  con- 
sequences, makes  a  proposal  for  the  purchase  of  that  projierty.  he  certainly 
ought  to  communicate  to  the  person  with  whom  he  is  dealing,  the  exact  state  of 
the  circumstances  of  the  case,  and  to  say  to  him  :  '  I  regret  that  from  mis- 
take,— (if  it  be  mistake,  and  I  will  assume  it  to  be  so  for  the  present  purpose) — 
*  I  have  taken  some  two  thousand  tons  of  your  coal.     I  do  not  know  what  your 

527 


PARTIAL    PERtOnMANCE,  AND    COMPENSATION.  515 

Nor  -where  there  is  no  basis  for  ascertaining  the  amount. 

(Sec.  448.  When  the  nature  of  the  subject-matter,  the  terms  of  the 
contract,  or  the  kind  and  extent  of  the  defect  are  such  that  they 
furnisli  no  basis  u[)on  Avhich  to  ascertain  tlie  amount  of  the  compensa- 
tion with  any  reasonable  degree  of  certainty,  and  the  lixing  tlie  amount 
would,  tlierefore,  be  a  mere  matter  of  speculation,  a  partial  specific  per- 
formance witli  compensation  nuist  be  refused,  even  when  demanded 
by  the  purchaser.  Tlie  court  will  not  apply  this  rule  except  in  cases 
of  real  necessity,  and  prefers  to  grant  compensation  even  when  its- 
measure  cannot  be  exact,  and  the  estimate  must  be  rather  approxi- 
mate than  certain. (1)  Indemnity  has  sometimes  been  given  by  courts 
of  equity,  instead  of  compensation,  when  the  loss  is  contingent ;  but 

view  of  the  case  may  be.  I  am  ready  to  buy  the  property  out  and  out,  or  I  am 
3'eady  to  submit  to  the  consequences  of  an  action  or  an  arbitration,  or  what  yoa 
like,  with  reference  to  this  coal  I  have  taken.'  The  proposal  which  he  makes  is 
not  in  reality  a  simple  proposal  for  the  purchase  of  the  property  ;  it  involves  a 
buying  up  of  rights  which  the  owner  has  acquired  against  him,  and  of  which  the 
owner  is  not  aware.  He  is,  therefore,  bound  to  inform  the  owner  of  the  circum- 
stances of  the  case,  and  is  not  at  libertv  to  enter  into  a  conti-act  without  his  dis- 
closing his  commission  of  an  act  which  has  rendered  him  liable  to  certain  conse- 
quences, and  of  which  act  the  person  with  whom  he  is  dealing  has  a  right  to  be 
informed,  in  order  to  know  what  course  he  is  to  adopt.  *  *  *  I  apprehend  it 
would  be  an  error  to  say,  generally,  that  you  cannot  enforce  a  contract  in  this 
court  where  the  one  party  knows  more  of  the  value  than  the  other  does.  It 
happens  frequently  in  the  purchase  of  pictures — for  instance,  that  one  party 
knows  a  great  deal  more  of  the  value  than  the  other,  and  yet  the  bargain  is  per- 
fectly good.  *  *  *  But  the  case  is,  not  merely  that  the  purchasers,  being 
more  experienced  men,  knew  the  value  of  the  coal  better  than  the  vendors,  but 
that  the  vendors  being  unable  to  gain  access  to  the  coal,  the  j^urchasers  took  ad- 
vantage of  an  unlawful  access  to  it  in  order  to  test  its  value,  and  did  not  com- 
municate to  the  vendors  the  result.  *  *  *  The  case  would,  I  think,  be  some- 
thing analogous  to  this :  Suppose  a  picture-dealer,  employed  to  clean  a  picture, 
scrapes  off  a  part  of  the  picture  to  see  if  he  can  discover  a  mai-k  which  will  tell 
him  who  is  the  ai-tist,  and  thus  finds  a  mark  showing  it  to  be  the  work  of  a  great 
artist,  that  would  not  be  a  legitimate  mode  of  acquiring  knowledge  for  the  pur- 
pose of  enaV)ling  him  to  buy  the  picture  at  a  lower  price  than  the  owner  would 
have  sold  it  for  had  he  known  it  to  be  the  work  of  that  artist.  I  do  not,  how- 
ever, dwell  on  that  point,  as  it  is  not  satisfactorily  established  in  my  mind  that  the 
price  was  inadequate.  The  ground  of  my  decision  is,  that  the  purchasers  sup- 
pressed the  fact  of  their  having  wrongfully  got  a  large  quantity  of  the  vendor's 
coal,  and  so  given  the  vendor  a  heavy  pecuniary  claim  against  them." 

(1)  For  example,  compensation  has  been  given  for  a  right  to  dig  coal  in  the 
land  sold.  Ramsden  v.  Hirst,  4  Jur  (N.  S.)  200.  Still,  if  no  reasonable  estimate 
can  be  made,  compensation  must  be  refused  ;  as  when  ornamental  timber  was 
cut  on  property  which  the  vendee  intendeil  for  a  residence,  it  was  held  that  the 
value  of  the  timber  as  ornamental,  and  the  amount  of  the  loss,  could  not  be  meas- 
ured. Magennis  v.  Fallon,  2  Moll.  561,  584  ?  see,  also.  Lord  Brooke?).  Rounth- 
waite,  5  Hare,  298. 
528 


510  SPECIFIC  rhRFOHMASCK   OF  COyTRACTS. 

tie  court  will  not  conipel  the  vendee  to  take,  nor  the  vendor  to  give, 
aa  indenniiiy  unle.s6  if.  i.s  provided  for  by  the  terin.s  ol'  th<>  contract. 
itself.(l) 

Where  the  vendor  is  the  actor,  demanding  a  partial  specific 
performance,  or  a  specific  performance  with  compensation. 

Sec.  449.  II.  Before  proceeding  with  the  <li.--ciissioii  of  thitj  tupic, 
I  would  ])oint  out  an  exceedingly  iin})ortant  di;;tincti()n  between  two 
classes  of  cases  in  which  the  vendor  is  the  plaintiff  or  uiuviug  party 
— a  most  important  difference  between  the  relations  in  which  the 
litigants  stand  to  each  other — which  must  et'er  be  kept  in  view 
when  examining  the  decisions,  and  aiiplying  them  1o  the  facts  of 
any  particular  case ;  in  other  words,  the  force  and  effect  of  the 
authorities  cannot  be  correctly  appreciated  without  a  constant  recog- 
nition of  this  distinction ;  and  yet  it  has  been  passed  over  in  silence 
by  the  text- writers.  It  is  the  following:  In  one  class  of  cases 
the  vendor,  knowing  that  he  cannot  fulfill  in  all  res[)ects,  and  that 
he  is  not  entitled  to  a  complete  specific  performance,  alleges  all 
the  facts  showing  why  he  is  unable  to  comply  with  the  exact  terms 
of  the  contract,  and  prays  for  a  decree  compelling  the  defendant 
to  accept  the  jiartial  performance,  and  conceding  that  compensation 
or  abatement  from  the  price  should  be  allowed ;  in  other  words, 
the  vendor  seeks  to  force  a  specific  performance  with  compensation 
upon  an  unwilling  purchaser.  The  defendant,  on  the  other  hand, 
resists  the  plaintiff's  claim  entirely,  and  denies  his  liability  to 
accept  a  conveyance  and  perform  on  his  own  part,  even  if  he  does 
receive  compensation.  (2)  In  the  other  class  of  cases,  the  vendor 
alleges  what  he  regards  as  the  material  facts,  and  demands  a  decree 
compelling  the  defendant  to  accept  the  title  and  subject-matter  in 
their  actual  condition  without  any  compensation  ;  or,  in  other  words, 
the  vendor  asserts  the  purchaser's  full  liabilty  to  specifically  perform, 

(1)  See  the  following-  cases,  in  which  the  sul)ject  of  iiideinnity  is  discussed  : 
Milligan  v.  Cooke,  16  Ves.  1  ;  Campbell  v.  Hay,  2  Moll.  102  ;  Balinanno  v.  Luniley, 
1  V.  &  B.  225  ;  Paton  v.  Brebner,  1  Blig-h,  6G  ;  Aylett  v.  Ashton.  1  My.  &  Cr.  10.') : 
Powell  V.  South  Wales  Ry.  Co.,  1  Jur.  (N.  S.)  773 ;  Bainbridge  v.  Kinnaird.  32 
Beav.  346 ;  Ridjrway  v.  Gray,  1  Hall  &  T.  19.') ;  1  Mao.  &  G.  109 ;  Wood  v.  Bei-- 
n;il,  19  Ves.  2J0  ;  Fildes  v.  Hooker,  3  Mad.  193  ;  Wilson  v.  Williams,  3  Jur.  (N. 
S.)  810;  Loimsbui-y  v.  Locander.  2.t  N.  J.  Eq.  .^).').5 ;  [Reese  «.  Hoeckel,  .''iS  Cal.  281.] 

(2)  For  example,  if  the  vendor  discovered  that  he  could  not  make  tille  to  a  por- 
tion of  the  land,  and  should,  nevertheless,  attempt  to  compel  the  purchaser  to 
accept  the  part  of  which  the  title  was  good,  with  a  correspondinjr  abatement  from 
the  price,  and  the  vendee  should  resist  the  claim,  and  deny  his  lialiility  to  accept 
a  partial  performance  even  with  compensation,  the  case  would  be  an  example  of 
this  class. 

529 


PARTIAL   PERFORMAyCE,  AND    COMPENSATION.  517 

and  denies  expressly  or  tacitly  his  own  liability  to  make  compensa- 
tion ;  he  asks  the  ordinary  decree  without  compensation.  The  vendee, 
on  the  other  hand,  does  not  wholly  refuse  to  complete,  ;is  in  the 
former  case ;  on  the  contrary,  is  willing  to  complete  upon  being 
allowed  compensation.  He,  therefore,  sets  up  the  facts  showing  a  par- 
tial failure,  etc.,  and  insists  that  he  is  not  obliged  to  specifically  per- 
form without  an  abatement  from  the  price.(l)  It  is  plain  that  the 
plaintiff  nmst  be  held  by  much  more  strict  rules  in  gi'anting  him 
relief  in  the  first  class  of  cases  than  in  the  second ;  in  fact,  the  rela- 
tions of  the  parties,  ii^  the  second  class  of  cases,  are  quite  similar  to 
those  which  exist  when  the  vendee  himself  is  the  plaintiff.  The  doc- 
trines and  rules  which  I  shall  first  state  and  illustrate  are  those  which 
govern  the  decision  of  cases  belonging  to  the  former  of  these  two  classes. 
Sec.  450.  "While,  as  has  been  shown  in  the  preceding  subdivision,  the 
vendee  may  in  general  compel  the  vendor  to  convey  what  he  has,  and 
to  make  compensation  for  his  failure  to  fully  comply  with  his  agree- 
ment, the  vendor  cannot,  in  general,  compel  the  vendee  to  accept  a 
partial  specific  performance  of  the  agreement  with  compensation  for 
the  defects  of  title  or  deficiency  of  subject-matter.  In  respect  of  the 
right  to  enforce  a  partial  performance  upon  his  adversary,  the  vendor 
does  not  possess  the  power  of  election  which  ecpiity  confers  upon  the 
vendee.  Two  rules  are  equally  well  settled  by  courts  of  equity.  If 
the  vendor's  failure  to  comply  with  the  terms  of  the  contract,  either 
with  respect  to  a  defective  title  or  a  deficiency  in  the  subject-matter, 
is  not  material,  but  is  rather  formal  in  its  nature,  so  that  the  pur- 
chaser will  get  substanlially  w^hat  he  contracted  for,  then  the  vendor 
can  obtain  a  decree  for  a  specific  performance  with  compensation, 
even  against  an  unwilling  vendee. (2)     If,  however,  the  inability  of 

(1)  If  the  vendor  bi-ings  a  suit  in  the  ordinary  form,  seeking  to  obtain  the  ordi- 
nary decree,  and  the  purchaser  should  set  up  some  particular  point  in  which  the 
premises  failed  to  correspond  with  the  description,  some  deficiency  in  the  subject- 
matter,  or  perhaps  some  incumbrance  or  easement,  and  should  allege  a  willing- 
ness to  complete  on  being  allowed  a  suitable  compensation,  but  deny  a  liability 
to  complete  without  a  compensation,  the  case  would  belong  to  the  second  class, 
and  it  is  plain  that  the  decision  would  be  governed  by  an  application  of  the  same 
principles  which  have  been  stated  in  the  last  preceding  subdivision — the  princi- 
ples which  control  in  suits  brought  by  vendees  asking  for  a  specific  performance 
-with  compensation. 

(2)  Halsey  7).  Grant,  13  Ves.  77,  per  Lord  Ch.  Erskine  ;  Guest  ti.  Homfray.  5 
Yes.  818  ;  Mortlock  v.  Buller,  10  Ves.  306 ;  Vignolles  v.  Bowen.  12  Ir.  Eq.  Rep. 
194  ;  McQueen  v.  Farquhar,  11  Ves.  467 ;  Scott  v.  Hanson,  1  Russ.  &  My.  128  ; 
King  V.  "Wilson,  6  Beav.  124 ;  Cann  v.  Cann,  3  Sim.  447  ;  Foley  v.  Crow,  37  Md. 
51.     This  doctrine  is  well  laid  down  in  this  last  case,  as  follows  :   "  Where  a  vendor 

530 


518  SFEVIFIC    I'KliFOHMA.WE    OF   C().\TIiAi'TS. 

the  vendor  to  fulfill  on  liis  part  affects  a  iiuiterial  imrt  of  the  contract, 
if  the  defect  in  his  title  or  the  deficiency  in  the  subject-matter  is 
substantial,  and  not  merely  :i  failure  to  literally  comply  with  the 
exact  terms  of  the  ag'veemeut — in  short,  if  the  vendoe  will  not  g'et 
substantially  what  he  contracted  for,  thou  the  vendor  will  not  be  [ler- 
mitted  to  enforce  such  a  partial  performance,  even  with  compensa- 
tion upon  an  uuwillin^^  purchaser. (1) 

Vendor  not   entitled   when  there  has  been   a  material  mis- 
description in  the  contract. 

Sec.  451.  The  doctrine  that  the  vendor  cannot  force  a  partial 
specific  performance  with  a  comi)ensation,  applies  where  there  has 
been  a  material  misdescription  in  the  contract,  even  though  not  inten- 
tional— that  is,  where  the  title,  kind  of  estate,  or  the  subject-matter 
which  the  vendor  actually  has  differs  in  any  material  manner  from 
that  described ;  and  this  may  be  so  even  when  the  contract  contains 
a  clause  expressly  providing  for  compensation  in  case  of  any  error. (2) 
The  following  are  illustrations  of  this  rule,  and  of  the  cases  in  which 
it  has  been  enforced :  A  vendor  who  has  contracted  to  give  or  to 
assign  a  lease,  cannot  compel  the  purchaser  to  accept  a  transfer  of  an 

is  unable  from  any  cause,  not  involving  mala  fides  on  his  part,  to  convey  each 
and  every  parcel  of  the  land  contracted  to  be  sold,  and  it  is  apparent  that  the  part 
which  cannot  be  conveyed  is  of  small  inipoi-tance,  or  is  immaterial  to  the  pur- 
chaser's enjoyment  of  that  which  may  be  conveyed  to  him ;  in  such  case  the 
vendor  may  insist  on  performance  with  compensation  to  the  purchaser,  or  a  pro- 
portionate abatement  fi-om  the  agreed  price,  if  that  has  not  been  paid."  If  this 
language  be  extended  so  as  to  include  also  immaterial  defects  of  title,  it  will  be  a 
very  correct  and  comprehensive  statement  of  the  doctrine.  Shaw  v.  Vincent,  64 
K.  C.  690 ;  Nagle  v.  Newton,  22  Gratt.  814 ;  Lombard  t).  Chicago  Sinai  Ci)ngre- 
gation,  64  111.  477  ;  [In  re  Fawcett,  42  Ch.  D.  156  ;  Creigh  v.  Boggs,  19  W.  Va. 
240  ;  Towner  v.  Tickner,  112  111.  217  ;  Farris  v.  Hughes,  (Va.)  17  S.  E.  Rep.  518.] 

(1)  Long  V.  Fletcher,  2  Eq.  Cas.  Abr.  5,  pi.  4;  Spunner  v.  Walsh,  11  Ir.  Eq. 
597;  Drewe  v.  Hanson,  6  Ves.  675;  Halsey  v.  Grant,  13  Ves.  73;  Stapylton 
V.  Scott,  13  Ves.  425 ;  KnatchbuU  v.  Grueber,  3  Meriv.  124,  146  ;  Howland 
V.  Norris,  1  Cox,  59  ;  Peers  v.  Lambert,  7  Beav.  546 ;  Perkins  v.  Ede,  16 
Beav.  193 ;  Osbaldiston  v.  Askew,  2  J.  &  W.  539  ;  Sullings  v.  SuUings,  9  Allen, 
234 ;  King  v.  Knapp,  59  N.  Y.  462  ;  Thorp  v.  Pettit,  1  C.  E.  Green,  488 ;  Earl  v. 
Halsey,  1  McCartcr,  332 ;  Hoover  v.  Calhoun,  16  Gratt.  109 ;  McKean  v.  Read,  6 
Litt.  395  ;  Jackson  v.  Ligon,  3  Leigh,  161 ;  Breckenridge  v.  Clinckinbeard,  2  Litt. 
127  ;  Bryan  v.  Read,  1  Dev.  &  Bat.  Ecp  78;  Reed  v.  Noe,  9  Yei-g.  283  ;  Cunning- 
ham V.  Sharp,  11  Humph.  116,  121  ;  Buchanan  v.  Atwell,  8  Humjjh.  516:  Mc- 
CuUoch  V.  Dawson,  1  lud.  413  ;  O'Kane  v.  Kiser,  25  Ind.  168;  Hepburn  v.  Auld, 
5  Cranch,  262.  Shaw  v.  Vinc<Mit.  64  N.  C.  t:90  ;  Lombartl  f.  Chicago  Sinai  Con- 
gregation, 64  111.  477 ;  [Smyth  v.  Sturges,  108  N.  Y.  495.] 

(2)  In  Flight  v.  Booth,  1  Bing.  (N.  C.)  377,  C.  J.   Tindal  used  the  following 

language  concerning  the  misdescription  which   would  thus  override  a  duusi' 

expressly  jiroviding  for  compensation:    A  misdescription  "in  a  material  and 

substantial  point,  so  far  affecting  the  suliject-matter  of  the  contract  as  that  it 

may  be  reasonably  suppose  that,   but   for  such  misdescription,   the  purchaser 

might  never  have  entered  into  the  contract  at  all." 

531 


PAR'lIAL    PERFORMANCE,  AAD    COM REA:SAT10X.  519 

underlease. (1)  And  a  vendor  cannot  force  the  purchaser  to  accept  a 
different  species  of  estate  from  that  agreed  to  be  conveyed,  as  lease- 
liold  instead  of  freehold,  even  though  the  lease  is  for  a  very  long" 
terra  ;  it  is  in  fact  a  general  principle  that  a  defect  which  extends  to 
and  affects  the  entire  estate  prevents  a  specific  performance  against 
an  unwilling  vendee. (2)  But  any  objections  which  the  vendee  might 
otherwise  thus  make  to  the  different  kind  or  nature  of  the  estate,  will 
be  waived  by  his  conduct  inconsistent  with  an  intention  to  abandon 
the  contract ;  as  by  his  going  on  with  the  negotiation  and  dealing 
after  he  discovers  the  true  nature  of  the  vendor's  interest.(3) 

Nor  when  the  land  is  encumbered. 

Sec.  452.  A  vendor  who  has  contracted  to  sell  an  entire  estate  or 
parcel  of  land,  cannot  compel  the  purchaser  to  accept  the  conveyance 
of  an  undivided  share  of  it  with  compensation  ;  (4)  nor  can  the  ven- 
dor of  an  estate  in  possession  force  upon  the  unwilling  vendee  an 
estate  in  remainder  or  reversion. (5)  If  the  land  contracted  to  be 
sold  turns  out  to  be  subject  to  charges,  easements,  rights  of  user  or 
incumbrances,  which  extend  to  the  whole  estate,  and  cannot  be  com~ 
pensated  for,  and  removed  by  an  application  of  the  purchase-money, 
the  vendor  is  not  entitled  to  enforce  the  contract ;  but  if  tlie  charge 
is  a  slight  and  immaterial  one,  and  especially  if  it  be  an  incumbrance 
by  mortgage  or  judgment,  which  can  be  paid  off  and  removed  by 
means  of  the  purchase-money,  the  court  may  decree  a  specific  per- 
formance making  provision  in  the  decree  for  removing  the  incum- 
brance. (6) 

(1)  Madeley  v.  Booth,  2  DeG.  &  Sm.  718 ;  but  see  Darlington  v.  Hamilton,  Kay, 
558,  a  case  in  which,  from  its  peculiar  facts,  the  rule  was  not  applied. 

(2)  Leasehold  instead  of  freehold,  Drewe  v.  Corp,  9  Ves.  3G8 ;  1  S.  &  S.  201,  n ; 
"Wright  V.  Howard,  1  S.  &  S.  190 ;  Barton  v.  Lord  Downes,  1  Flan.  &  K.  505  ; 
Fordyce  v.  Ford,  4  Bro.  C.  C.  494.  A  vendee  is  not  compelled  to  take  copyhold 
when  he  has  contracted  for  freehold.  Twining -y.  Morrice,  2  Bro.  C.  C.  26  ;  Hicks 
V.  Phillips,  Prec.  Ch,  575  ;  but  see  Price  v.  Macaulay,  2  DeG.  M.  &  G.  339 ;  nor 
will  a  vendee  who  has  contracted  to  purchase  cojiyhold  be  forced  to  accept  an 
estate  partly  freehold.  Ayles  v.  Cox,  16  Beav.  23 ;  and  see  Daniels  v.  Davison,  16 
Ves.  249  ;  and  Prindergast  v.  Eyre,  2  Ilogan,  81. 

(3)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494 ;  Burnell  v.  Brown,  1  J.  &  W.  108  ; 
Martin  v.  Cotter,  3  Jo.  &  Lat.  496  ;  but  he  will  still  be  entitled  to  compensation 
if  he  object.     Calcraft  v.  Roebuck,  1  Ves.  226. 

(4)  Att'y-Gen.  v.  Day,  1  Ves  Sen.  218  ;  Roffey  v.  Shallcross,  4  Madd.  227  ; 
Dalby  v.  Pullen,  3  Sim.  29 ;  Casamajor  v.  Strode,  2  My.  &  K.  726  ;  Erwin  ■?). 
Meyers,  10  Wright,  96  ;  Napier  v.  Darlington,  LO  P.  F.  Smith,  64  ;  Clark -w.  Reins* 
12  Gratt.  98.     [But  see  Cranston  v.  Wheeler,  37  Hun,  63.] 

(5)  Collier  v.  Jenkins,  You.  295  ;  Nelthorpe  v.  Holgate,  1  Coll.  203  ;  Hughes  v, 
Jones,  3  DeG.  F.  &  J.  307. 

(6)  As  to  mortgages,  etc.,  which  can  be  removed,  Guynet  v.  Mantel,  4  Duer> 
86;  Marsh   v.    Wyckoff,    10  Bosw.    202;  Thompson  v.    Carpenter,  4  Barr.  132; 

532 


520  SI'KCIFIC  J'KRFORMANCE   OF  CONTRACTS, 

Nor  -when  the  title  to  a  material  part  fails. 

He(!.  453.  A  failure  of  the  vendor's  title  to  a  part  of  the  land" 
contracted  to  \w  .sold,  may  or  may  not  defeat  his  v\\!:\\i  to  a  specific 
perfoi'iii;iuc(\  If  the  portion  to  which  the  title  fails  is  .small,  unneces- 
sary and  immaterial  to  the  pos.se.ssion  and  leasonahle  enjoyment  of 
the  rest,  and  is  suscei)til>le  of  com[>ensatio;i,  the  vendee  will  be  com- 
pelled to  accept  that  ^vhich  can  be  conveyed  with  a  })roportionatc 
abatement  from  the  price. (1)  But  if  such  part  would  be  nuiterial  to 
the  possession  and  enjoyment  of  the  rest,  then  the  ven(h)r  cannot 
force  an  acceptance  of  the  residue  upon  an  unwilling  vendee.(2)     In 

Tiei-nan  v.  Roland,  3  Harris,  420 ;  Wallace  v.  McLaughlin,  57  111.  53 ;  [Grant 
V.  Beronio,  (Cal.)  32  Pac.  Rep  :^:^^^•,  Bnstwick  v.  Beacli,  103  N.  Y.  414;]  but  if  the 
incumbi'ance  cannot  be  removed  because  it  is  more  than  the  purchase-price,  or 
for  any  other  reason,  the  vendee  will  not  be  compelled  to  accept  the  land. 
Hinckley  v.  Smith,  51  N.  Y.  21  ;  Chi-istian  v.  Cabell,  22  Gratt.  82  ;  Gurnel  v. 
Mason,  4.  Call.  309  ;  Snyder  v.  Spaulding-,  57  111.  480  ;  Wallace  v.  McLaughlin, 
57  111.  £33.  For  small  and  tritling  incumbrances  compensation  may  be  given,  and 
a  specific  performance  granted.  Horniblow  v.  Shirley,  13  Ves.  81 ;  Halsey  v. 
Grant,  13  Ve.s.  73;  Esdaile  v.  Stephenson,  1  S.  &  S.  122;  Bowles  v.  Waller,  1 
Hayes,  441 ;  Prendergast  v.  Eyre,  2  Hogan,  94  ;  Portman  v.  Mill,  1  Rnss.  &  My. 
696  ;  Howland  v.  Norris,  1  Cox,  59  ;  Winne  v.  Reynolds,  6  Paige,  407  ;  Ten  Bi-oeck 
V.  Livingston,  1  Johns.  Ch.  357.  In  the  following  cases  it  has  been  held  that  the 
existing  charge  on  the  land  was  fatal  to  a  decree  in  favor  of  the  vendor  with  com- 
pensation ;  a  i-ight  of  sjiorting  over  the  land  :  Burnell  v.  Brown,  1  J.  &.  W.  168, 
although  the  objection  would  be  waived  if  the  vendee  took  possession  after  notice 
of  the  right — a  i-ight  of  digging  on  or  over  the  land  for  mines  or  minerals,  Barton 
V.  Lord  Downes,  1  Flan.  &  Kcl.  505  ;  Seaman  v.  Vawdrey,  16  Ves.  390  ;  Upperton 
^.  Nickolson,  L.  R.  6  Ch.  436  ;  a  liability  to  keep  a  chancel  in  repair,  Horniblow 
V.  Shirley,  13  Ves.  81  ;  2  Sw.  223  ;  certain  species  of  taxes  which  were  permanent 
liens.  Cox  v.  Coventon,  31  Beav.  378  ;  Barraud  v.  Archer,  2  Sim.  433  ;  2  Russ.  & 
My.  751  ;  a  liability  for  tithes,  Binks  v.  Lord  Rokeby,  2  Sw.  222  ;  but  see  Smith 
■?.  Tolcher,  4  Russ.  302  ;  a  i-ight  of  way  over  land  sold  and  bought  for  pur])Ose 
of  erecting  l)aildings  on  it.  Dykes  v.  Blake,  4  Bing.  (N.  C.)  463  ;  an  easement  of 
water  with  right  to  take  water  from  springs,  cuter  and  clean  out  channels,  etc., 
Shackleton  v.  Sutcliffo,  1  DeG.  &  Sm.  609. 

(1)  McQueen  tJ.  Farquhar,  11  Ves.  467;  KnatchbuU  v.  Grueber,  1  Madd.  153  ; 
Bowyer  v.  Bright,  13  Price,  698 ;  Carver  v.  Richards,  6.  Jur.  (N.  S.)  667  ;  Scott  v. 
Hanson,  1  Ru.ss.  &  My.  128  ;  Richardson  v.  Smith,  L.  R.  5  Ch.  648 ;  Shaw  v.  Vin- 
cent. 64  N.  C.  690;  Davison  v.  Perrine,  7  C.  E.  Green,  87;  Foley  v.  Crow,  37 
JId.  51. 

(2)  Peers  v.  Lambert,  7  Beav.  546  ;  Pei-kins  v.  Ede^  16  Beav.  193  ;  Osbaldiston 
V.  Askew,  2  J.  &  W.  539,  per  Lord  Eldon  ;  KnatchbuU  v.  Grueber,  1  Madd.  153  ; 
Stewart  v.  Alliston.  1  Meriv.  26  ;  Caballero  v.  Henty,  L,  R.  9  Ch.  447  ;  Shackleton 
V.  Sutcliffe,  1  DeG.  &  Sm.  609  ;  Stewart  v.  Marquis  of  Conyngham,  1  Ir  Ch. 
Rep.  .534;  Hughes?).  Jones,  3  DeG.  F.  &  J.  307  ;  Leyland  v.  Illing\vorth,  2  DeG. 
F.  &  J.  2^8  :  Magennis?).  Fallon,  2  Moll.  590  ;  Darby  v.  Whitakei-,  4  Drew,  134; 
Jackson  r.  Ja(-kson,  1  Sm  &  G.  184.  S.m^  Denny  v.  Hancock,  L.  R.  6  Ch.  1, 
and  Baskcomb  v.  Beckwith,  L.  R.  8  Eq.  100.  A  clause  is  sometimes  inserted  in 
the  contract  by  which  the  vendee  stipulates  not  to  demand  title  or  object  to 
the  title  beyond  or  prior  to  a  certain  person  or  a  certain  conveyance  which  ia 

633 


PARTIAL   PERFORMANCE,  AND    COMPENSATION.  521 

immediate  connection  with  this  case  stands  that  of  the  sale  of  several 
distinct  lots  or  parcels  and  a  failure  of  title  to  part  of  them.  One 
principle  at  bottom  governs  the  two  cases,  but  the  latter  one  also  in- 
volves the  doctrine  of  the  entirety  or  separability  of  contracts.  Two 
rules  are,  therefore,  established  by  the  decisions.  If  two  or  more  lots, 
ahhoug-h  physically  distinct  and  having  no  necessary  connection,  are 
sold  by  one  entire  contract  and  for  one  gross  sura,  and  the  title  to  one 
or  more  of  them  fails,  the  court  will  not  undertake  to  apportion  the 
price  among  the  parcels  and  make  abatement  in  respect  of  those  lots 
which  cannot  be  conveyed,  and  a  specific  performance  will  be  wholly 
refused. (1)  But  if  the  lots  are  sold  by  the  same  vendor  to  the  same 
purchaser  by  one  and  the  same  contract  which  is  separable  and  not 
entire,  then  there  being  a  distinct  and  separate  contract  with  respect 
to  each  lot,  a  failure  of  title  to  one  or  more  of  the  lots  will  not  prevent 
the  vendor  from  obtaining  a  decree  of  specific  performance  as  to  the. 
others ;  and  it  is  also  settled  as  a  part  of  this  doctrine,  that  if  the  lots, 
though  sold  at  one  time  and  by  the  same  agreement,  are  yet  sold  for 
distinct  and  separate  prices — a  separate  price  named  for  each  lot — 
then  the  contract  is  at  least  prima  facie  separable  and  not  entire,  and 
the  rule  as  above  stated  applies.(2) 

Deficiency  in  quantity. 

Sec.  454.  How  far  a  mere  deficiency  in  the  quantity  of  the  land 
shall  defeat  the  vendor's  remedy,  or  compel  him  to  make  compensa- 
tion, or  not  effect  his  remedial  right  at  all,  must  depend  upon  the 
particular  form  and  terms  of  the  contract  in  reference  to  this  point, 
and  upon  the  presence  or  absence  of  any  misstatement  or  misleading 
conduct  by  the  seller.  If  the  land  is  sold,  not  by  the  number  of  acres, 
but  by  metes  and  bounds,  or  by  means  of  any  other  similar  descrip- 
tion which  identifies  the  particular  tract,  and  the  vendee  receives  a, 

assumed  as  the  starting  point — the  person  designated  being  taken  to  be  at 
one  time  the  true  and  lawful  owner.  The  effect  of  this  clause  has  been 
frequently  considered.  It  is  held  that  where  the  clause  is  misleading,  and 
both  parties  have  been  mistaken,  and  the  assumed  source  of  title  is  in  fact  erro- 
neous, so  that  the  vendor's  title  is  radically  defective,  the  clause  has  no  effect  what- 
ever, and  does  not  prevent  the  vendee  from  going  behind  or  beyond  the  point 
thus  taken  as  the  source.  Jones  v.  Clifford,  L.  R.  3  Ch.  D.  779;  Harnett  v.  Baker, 
L.  R.  20  Eq.  50  ;  Else  v.  Else,  L.  R.  13  Eq.  196.  But  where  there  is  no  such  com- 
mon mistake  affecting  the  whole  title,  the  clause  has  its  full  effect.  Hume  V. 
Pocock,  L.  R.  1  Ch.  379 ;  1  Eq.  423  ;   Michnlls  v.  Corbett,  8  DeG.  J.  &  S.  18. 

(1)  Pi-indergast  v.  Eyi-e,  2  Hngan,  89  ;  Cunningham  v.  Sharp,  11  Humph.  116. 
See  King  vi.  Ruckman,  .5  C.  E.  Green,  316. 

(2)  Poole  V.  Shergold,  2  Bro.  C.  C.  118  ;  1  Cox,  273  ;  Lewin  v.  Guest,  1  Russ.  325  ; 
Gasamajor  v.  Strode,  2  My.  &  K.  724 ;  Harwood  v.  Bland,  1  Flan.  &  Kel.  540  ; 
Stoddard  v.  Smith,  5  Binney,  355  ;  Foley  v.  Crow,  37  Md.  51  ;  White  v.  Dobson,  17 
Gratt.  262  ;  Osborne  v.  Bremar,  1  Dessaus.  486. 

534 


522  SPFA'IFIC    I'Klx'Foiry.l.Xt'K    OF   C()XT/{ACTS. 

conveyance  of  that  very  tract,  then,  in  the  absence  of  intentional  mis- 
representation by  the  vendor,  a  deficiency  in  the  qnantity  wldch  tlie 
vendee  had  supposed  tlie  land  to  contain,  e\  en  thoiiy^h  that  quantity 
was  named  in  the  agreement,  will  not  artect  tin;  vendor's  right  to  a 
speciiic  performance,  or  entitle  the  purchaser  to  compensation,  uidess 
the  deficiency  should  be  so  great  as  to  virtually  defeat  tlie  pur{)0se 
for  which  the  contract  was  entered  into  by  the  vendee.  This,  of  course, 
assumes  that  the  purcliaser  was  not  misled,  and  that  he  had  opportu- 
nities for  becoming  acquainted  with  the  subject-matter,  and  then  the 
principle  caveat  emptor  applies  to  a  purchase  of  land  as  w(Ml  as  of  chat- 
tels.(l)  But  if  the  seller  has  misstated  the  quantity  or  number  of 
acres,  the  vendee  is  plainly  entitled  to  compensation  for  the  defi- 
ciency.(2)  When  the  land  is  sold  by  the  quantity,  and  not  by  metes 
and  bounds,  but  the  description  is  guarded  by  such  phrases  as  "  of 
or  about  "  a  certain  quantity,  "  be  the  same  more  or  less,"  and  the 
like,  then,  so  long  as  the  contract  remains  executory,  the  vendee  will, 
as  part  of  the  specific  performance  of  it,  be  entitled  to  compensation 
for  a  deficiency,  unless  it  is  very  small  and  trifling  ;(3)  but  if  t^ie  con- 
tract has  been  carried  into  effect  by  a  conveyance,  the  grantee  is  not 
entitled  to  any  deduction  from  the  price  or  to  recover  back  any  por- 
tion of  it,  even  when  the  deficiency  is  considerable. (4)  And  if  the 
vendor  was  aware  that  the  quantity  stated  w'as  greater  than  the 
actual  amount,  such  phrases  inserted  in  the  contract  will  have  no  eifect 
upon  his  liability  to  make  compensation. (5)  It  will  not  be  inferred 
from  the  vendee's  familiar  acquaintance  with  the  land  in  question, 
or  even  from  his  occupation  of  it  as  a  tenant,  that  he  was  aware  of  the 
true  quantity,  so  as  to  cut  off  a  right  of  compensation  to  which  he 
would  be  otherwise  entitled. (6) 

(1)  See  Kent  v.  Carcaud,  17  Md.  291  ;  Foley  r.  McKeown,  4  Leigh,  627  ;  for  a  case 
■where  defect  in  vahie  was  held  not  entitled  to  compensation,  see  Edwards-Wood 
V.  Majoribanks,  3  De  G.  &  J.  329. 

(2)  Sir  Cloudesley  Shovel  v.  Bogan,  2  Eq.  Cas.  Abr.  6S8  pi.  4  ;  Hill  r.  Buck- 
ley, 17  Yes.  394  ;  In  re  Gove's  estate,  3  I.  R.  Eq.  2<]0  ;  Whittemore  v.  Whitteniorc, 
L.  R.  8  Eq.  603  ;  as  to  misstatement  of  value  by  vendor,  see  Powell  v.  Elliott,  L. 
R.  10  Ch.  424. 

(3)  Hill  V  Buckley,  17  Yes.  394  ;  Portman  v.  Mill,  2  Russ.  570  ;  Day  v.  Finn, 
Owen,  133;  In  re  Egan's  Estate,  6  Ir.  Jur.  (N.  S.)  90;  In  re  Browne's  estate,  ;"> 
Ir.  Jur.  (N.  S.)  185;  but  see  ^Vinch  r.  Winchester,  1  Y.  &  B.  375. 

(4)  TwyfonU.  Warenp,  Rep.  temp.  Finch,  310;  Anon.,  2  Freem.  Ch.  108;  Lord 
Townshend  i\  Stangroom,  6  Yes.  328. 

(5)  Winch  ?•. Winchester,  1  Y.  &  B.  375  ;  Duke  of  Norfolk  jv  Worthy.  1  Camp.  337. 

(6)  Winch  v.  Winchester,  1  Y.  &  B.  375;  King  v.  Wilson.  6  Beav.  124  ;  a.s  to  the 
effect  of  the  land  turning  out  to  be  of  a  hu-ger  quantity  than  that  described  in  the 
contract.     See  I'l'ice  r.  Noi'th,  2  V.  &  ('.  Exch.  620. 

535 


PARTTAL    PERFORMANCE,  AND    COMPE.XSA'I ION.  523 

Intentioi:  al  niisrepresentatic  n. 

k5ec.  453.  AVhero  there  is  soiuethiug  more  than  a  mere  misdescsip- 
tion  or  unintentional  error,  and  the  vendor  has  been  guilty  of  an 
actual  intentional  misrepresentation — a  misstatement  of  the  subject- 
matter  or  estate  or  title,  knowing  the  real  facts  of  the  case,  even 
though  the  failure  is  so  small  and  immaterial  that  without  the  element 
of  knowledge  and  intent  it  would  not  have  prevented  a  specific  per- 
formance with  or  without  compensation — the  vendor  thereby  forfeits 
all  right  and  claim  to  the  aid  of  the  court  in  his  behalf,  and  a  partial 
enforcement  w'ith  compensation  against  an  unwilling  purchaser  will 
always  be  denied.(l) 

Time  -when  compensation  may  be  alloTved. 

8ec.  45G.  In  respect  to  the  time  at  which  compensation  may  be 
claimed  and  allowed,  there  is  an  important  distinction  between  the 
demand  made  by  the  vendor  and  that  made  by  the  purchaser.  If  the 
vendor  wishes  to  force  a  partial  performance  with  compensation  upon 
an  unwilling  vendee,  he  nuist  allege  all  the  facts  and  set  out  the  whole 
case  entitling  him  to  relief  in  his  bill  or  other  first  pleading  whatever 
be  its  name,  and  must  thus  present  the  matter  as  one  of  the  issues 
to  be  heard  and  determined  in  making  a  decree ;  as  he  is  assumed  to 
know  all  the  facts  connected  with  his  own  title,  estate,  and  property, 
he  cannot  claim  a  partial  performance  with  compensation  for  any  defect 
not  stated  in  his  pleading,  and  first  appearing  in  the  evidence  or  in 
the  allegations  of  the  defendant's  answer.(2)  If  the  vendee  is  plain- 
tiff", and  wushes  to  compel  a  conveyance  of  what  the  vendor  can  give 
with  compensation  for  defects  or  deficiencies,  he  may  also  allege  all 
the  facts  and  pray  for  the  relief  in  his  complaint,  and  this  would 
undoubtedly  be  the  better  course ;  but  even  where  he  is  plaintiff",  and 
much  more  so  where  he  is  defendant,  he  may  claim  and  obtain  com- 
pensation, vathout  any  allegation  in  respect  thereof  in  his  pleading, 
for  any  cause  appearing  in  the  course  of  the  judicial  proceeding,  even 
appearing  upon  the  investigation  as  to  title  after  a  general  decree 
awarding  a  specific  performance  has  been  made. (3)  Compensation 
may,  therefore,  be  granted  to  the  vendee,  on  his  dematid,  at  any  time 

(1)  Viscount  Clermont  v.  Tasburgh,  1  J.  &  W.  120,  per  Sir  T.  Plumer  ;  Duke  of 
Norfolk  t). Worthy,  1  Cainp.  337,  340  ;  Stewart  v.  Alliston,  1  Meriv.  26  ;  Price  v. 
Macaulay,  2  DeG.  M.  &  G.  339.  344  ;  Lachlan  v.  Reynolds,  Kay,  52  ;  Miller  v. 
Chetwood,  1  Gi-een's  Ch.  199  ;  Best  v.  Stow,  2  Sandf.  Ch.  298.  But  see  Powell  v. 
Elliott,  L.  R.  10  Ch.  424,  whei-e  the  vendor's  misreiiresentation  as  to  value  was 
compensated  foi-,  bat  the  vendee  did  not  refuse  to  complete,  and  only  claimed 
compensation. 

(2)  Bowyer  v.  Brig-ht,  13  Price,  098  ;  Ashtou  v.  Wood,  3  Sm.  &  Gif.  436  ;  3  Jur 
(N.  S.)  1164. 

(3)  Wilson  V.  Williams,  3  Jur.  (N.  S.)  810. 

536 


524  SPECIFIC  PEIiFORMANCK   OF  CONTRACTS. 

"befuro  the  contract  is  fully  completed  by  conveyance  and  payment  of 
all  tlie  price,  for  any  sufficient  cause  occurrin^^  either  before  or  after  the 
contract  was  concluded. (1)  Thus,  where  the  vendor  has  delayed  in 
l)crfecting  title,  compensation  has  been  allowed  for  a  deterioration 
of  the  property  occurriug  between  the  time  wlieu  he  should  Iiave 
completed  and  the  time  when  he  does  couiplete,  either  Irom  his  neglect 
or  from  his  intentional  acts  or  omissions. (2)  No  com})ensation.  how- 
ever, can  be  given  after  the  contract  is  finally  executed  by  both 
parties  by  conveyance  and  payment  of  the  ]>urchase-i)rice.(8) 

enforcement  of  contracts  against  husband   or   husband  and 
■wife  Tvhere  the  vrife  has  an  interest  in  the  land. 

•Sec.  457.  I  contine  myself  in  this  subdivision  to  questions  arising 
where  the  common-law  disabilities  of  the  wife  are  still  existing.  The 
recent  statutes  of  many  of  the  states,  permittiiig  a  wife  to  bind  her- 
self either  fully  or  partially  by  her  contracts,  are  collected  in  a  former 
section.  The  following  cases  may  arise :  1.  Where  the  husband 
enters  into  a  contract  agreeing  to  convey  the  land,  and  it  turns  out 
that  the  husband's  estate  is  only  a  partial  one,  while  the  wife  owns 
the  reversion  or  remainder  in  fee,  and  the  question  which  is  ordinarily 
presented  is,  w^hether  the  vendee  can  compel  the  husband  to  convey 
his  partial  interest  with  abatement  for  the  wife's  interest.  2.  Where 
the  wife  has  entered  into  a  contract  as  a  party — generally  in  the 
nature  of  a  marriage  settlement.  8.  Where  the  husband  agrees  to 
sell  land,  of  which  he  is  the  owner  in  fee,  but  in  which  his  wife  has 
an  inchoate  dower  right,  and  she  refuses  to  execute  the  contract  by 
joining  in  a  conveyance  and  release  her  dower  right.  This  latter  case 
does  not  arise  in  England,  since  dower  has  there  long  been  merely 
nominal ;  and,  on  the  other  hand,  the  first  case  has  seldom  arisen  in 
this  country,  but  has  frequently  been  presented  to  the  English  courts, 
because  by  the  prevailing  use  of  marriage  and  family  settlements, 
estates  in  land  are  very  often  given  to  the  wife  either  for  life  on  in 
remainder. 

1.  Against  husband  -who  has  a  partial  interest. 

Sec.  458.  It  seems  to  be  settled  as  the  gtmeral  rule  in  England, 
that  where  altnisband,  whohas  only  a  life  interest  in  possession,  while 
the  wife  is  owner  of  the  fee,  or  perlutps  has  a  life  inttM"(\st  in  remain- 
der, ctmtracts  to  sell  arul  convey  the  whole  estate  to  a  iJurchaser  who 
at  the  time  of  entering  into  the  agreement  is  aware  of  tln^  natin-e  of 

(1)  Frank  v.  Basnet,  2  My.  &  K.  618  ;  Cann  v.  Catin,  3  Sim.  4-17  ;  Pidtlicio  v. 
Phelps,  2.T  L.  J.  Ch.  105  ;  Ci-ompton  v.  Lord  Melbourne,  5  8iin.  ;{i)8. 

(2)  Foster  v.  Deacon,  3  Madd.  394  ;  Nelson  v.  Bridges,  2  Beav.  239  ;  Binks  v. 
Lord  Rolieby,  2  Sw.  222. 

(3)  Ihid. 

537 


PARTIAL    PERFORMANCE,  AND    COMPENSATION.  525 

the  ownership — that  is,  aware  of  the  wife's  interest — such  vendee 
cannot  compel  the  husband  to  convey  his  own  partial  estate  with  a 
compensation  or  abatement  from  the  price  in  respect  of  the  value  of 
the  wife's  estate,  a  conveyance  of  which  cannot  of  course  be  com- 
pelled.(l)  But  if  the  vendee,  under  the  same  circumstances,  and 
entering  into  a  like  contract,  was  ignorant  of  the  wife's  interest  and 
supposed,  in  good  faith,  that  he  was  dealing  with  the  husband  as  sole 
owner  of  the  land,  then  he  can  compel  a  conveyance  of  the  husband's 
partial  estate  with  an  abatement  from  the  price  with  respect  of  the 
wife's  interest  which  he  cannot  acquire. (2)  This  latter  rule,  however, 
has,  in  a  very  recent  decision,  been  applied  where  the  vendee  had 
full  knowledge  of  the  wife's  interest  in  the  land. (3) 

(1)  This  doctrine  is  laid  down  in  the  broadest  manner  by  Lord  Hatherly,  in 
the  recent  case  of  Castle  v.  "Wilkinson,  L.  R.  5  Ch.  534,  the  facts  and  opinion  being- 
given,  ante,  in  a  note  to  section  442. 

(2)  Barnes  v.  Wood,  L.  R.  8  Eq.  424.  See  facts,  etc.,  ante,  in  note  to  section  438. 
The  important  English  cases  in  which  the  doctrine  is  discussed,  are  Greenaway 
V.  Adams,  12  Ves.  395,  400  ;  Morris  v.  Steiihenson,  7  Ves.  474 ;  Emery  v.  Wase,  8 
Ves.  514  ;  Howell  v.  George,  1  Mad.  9 ;  Martin  v.  Mitchell,  2  J.  &  W.  425 ;  Mort- 
lock  V.  Buller,  10  Ves.  305  ;  Innes  v.  Jackson,  16  Ves.  367  ;  Frederick  v.  Coxwell, 
3  You.  &  J.  514. 

(3)  Barker  v.  Cox,  L.  R.  4  Ch.  D.  464  ;  3  Ch.  D.  359.  By  a  marriage  settlement 
real  estate  was  limited  to  such  uses  as  A.  and  B.  (a  husband  and  wife)  should  ajj- 
poiiit,  and,  in  default  of  appointment  to  trustees  for  the  use  of  B.,  the  wife, 
during  her  life,  with  remainder  to  A.,  the  husband,  in  fee.  A.  agreed  to  sell  the 
land  to  the  plaintiff,  who  knew  of  the  settlement,  and  to  procure  the  proper  con- 
veyances. Plaintiff  paid  the  whole  purchase-money  to  the  trustees  of  the  set- 
tlement. A  conveyance  was  prepared  as  a  joint  appointment  to  the  plaintiff  by 
A.  &  B.,  under  the  settlement,  but  before  execution  A.  suddenly  died.  B.,  being- 
a  woman,  of  course  refused  to  carry  out  the  contract,  and  convey  her  life  estate  ; 
and,  moreover,  she  insisted  on  the  whole  purchase -money  which  had  been  paid, 
being  retained  by  the  trustees,  although  the  plaintiff  would  only  get  the  remain- 
der after  her  life  estate.  Held,  on  his  suit,  that  plaintiff  was  entitled  to  a  specific 
lierformance  to  the  extent  of  A.'s  remainder  in  fee,  with  compensation  in  respect  of 
B.'s  life  interest,  and  a  lien  for  the  latter  on  the  invested  purchase-money  in  the 
hands  of  the  trustees  ;  in  other  words,  the  trustees  were  to  pay  him  back  a  pi-o- 
portionate  share  of  the  purchase-money.  Now,  although  this  decision  appears  at 
first  blush  to  be  inconsistent  with  Castle  v.  Wilkinson,  siijjra,  yet  there  is,  I  think, 
a  distinction  between  the  facts,  which  fully  accounts  for  the  difference  of  the  deci- 
sions. In  Castle  v.  Wilkinson,  the  vendee  knew  that  the  wife  owned  an  interest, 
and  that  of  course  she  could  not  be  compelled  to  convey.  In  the  present  case  the 
vendee  knew  of  the  wife's  interest,  and  that  she  could  not  be  compelled  to  con- 
vey ;  but  he  also  knew  that  both  she  and  her  husband  had  the  power  to  join  in  a 
conveyance  by  way,  of  appointment,  and  that  it  was  contemplated  by  all  parties 
that  she  should  thus  act  in  conjunctfon  with  her  husband.  He  had  a  reasonable 
ground  for  supposing  that  she  would  join  in  the  appointment,  and  on  the  strength 
of  such  supposition  paid  the  whole  purchase-money      It  would  have  been  grossly 

538 


526  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

2.  Where  the  -wife  is  a  party  to  the  contract. 

Sec.  459.  Where  a  married  woiiiaii  enters  into  a  contract  as  a 
party  by  which  she  agrees  to  convey  land,  the  agreement  cannot,  of 
course,  be  enforced  against  her,  even  when  she  acts  as  a  trustee  in 
making  the  contract.  (1) 

3.  When  the  -wife  of  vendor  has  an  incohate  doiver  right,  and 

refuses  to  join  in  the  deed. 
Sec.  460.  The  third  case,  where  the  wife  of  the  ven(b)r  lias  an 
incohate  right  of  dower  in  the  land  which  he  agrees  to  sell,  is  the  one 
which  is  constantly  arising  in  this  country.  It  seems  to  be  settled  in 
some  of  the  states  as  a  general  rule,  whether  the  vendee  knew  of  the 
wife's  dower  interest  or  not,  that  when  a  contract  is  made  wlih  the 
husband,  and  the  wife  refuses  to  release  her  dower,  tlu;  vendee  cannot 
have  an  abatement  from  the  price  if  he  obtains  a  specific  performance  ; 
he  must  either  abandon  the  contract,  or  obtain  a  conveyance  of  the 
husband's  estate,  and  sue  him  at  law  for  a  breach  of  the  contract,  or 
else  content  himself  with  the  legal  remedy  alone. (2)  Tiie  reasoning- 
inequitable  for  her  to  have  retained  the  benefit  of  this  purchase-money  and  still 
refuse  to  join  in  the  appointment,  which  she  could  have  done,  and  so  the  court 
ordered  a  part  of  the  money  to  be  returned.  See  Swepson  ii.  Rouse,  C")  N.  C  34  ; 
Rostetter  v.  Grant,  18  Ohio  St.  12G;  In  Iowa  a  contract  by  a  hus'nand  alone  to 
convey  a  homestead  is  void,  and  will  not  be  enforced  against  him  in  respeci  to  hia 
partial  interest.  Barnett  v.  Mendenhall,  42  Iowa  29(5 ;  and  see,  upon  the  same 
point,  Phillips  v.  Stanch,  20  Mich.  369. 

(1)  Avery  v.  Gi-iffin,  L.  R.  6  Eq.  606 ;  Nicholl  v.  Jones,  L.  R.  3  Eq.  696.  la 
Frarey  v.  Wheeler,  4  Org-.  190,  it  was  held  that  a  contract  of  a  married  woman  to 
convey  her  own  land,  made  by  herself  and  her  husband  jointly,  will  not  be  spe- 
cifically performed  by  a  decree  in  equity  ;  but  when  the  vendee  has  paid  the 
price,  taken  jiossession,  and  made  improvements,  the  land  will  be  charged  with 
an  equitable  lien  for  the  money  he  has  paid  for  the  price  and  expended  for  the 
improvements,  and  such  lien  will  be  enforced  by  an  equitable  action  primarily 
against  the  land,  in  the  same  manner  in  which  a  wife's  contracts  made  by  her  for 
the  benefit  of  her  separate  estate  are  enforced  in  equity.  For  a  case  in  which  a 
husband  and  wife,  who  had  jointly  contiacted  as  vendors,  and  had  executed  a 
joint  deed  of  the  land  and  depi>sited  it  in  the  hands  of  a  third  person,  to  be  de- 
livered to  the  vendee  on  his  payment  of  the  price,  were  pei-mitted  to  enforce  a 
specific  performance  against  the  vendee,  see  Fai-ley  v.  Palmer,  20  Ohio  St.  223  ; 
and  see  Merrill  v.  Bickford,  6.5  Me.  118  ;  Smith  t).  Armstrong,  24  Wise.  446  ;  Ste- 
vens V.  Pai-ish,  29  Ind.  260  ;  Raymond  v.  Pi-it(!hard,  24  Ind.  318  ;  Clayton  v.  Fra- 
zier,  33  Tex.  91  :  Baker  v.  Hathaway,  5  Allen,  103  ;  Seager'W.  Burns,  4  Minn.  141  ; 
Rostetter  v.  Grant,  18  Ohio  St.  126. 

(2)  This  is  the  settled  doctrine  in  Pennsylvania.  Clarkv.  Seiror,  7  Watts,  107, 110; 
Burk's  Appeal,  25  P.  F.  Smith,  141 ;  Riesz's  Appeal,  23  P.  F.  Smith,  485,  per  Shaus- 
wooD,  J.:  "The  rule  does  not  fall  within  the  principle  of  those  decisions  where  a 
vendor  who  cannot  make  a  title  to  all  he  has  contracted  to  convey,  is  held  to  be 
not  thereby  relieved  fi-om  specifi(;  performance  as  far  as  in  his  juiwer,  but  .-hall  be 
compelled  to  execute  his  contract  with  a  reasonable  abatement  from  the  j)!  ice. 
The  I'ight  of  dower  in  the  wiilow  is  of  such  a  contingent  nature,  (h'ptMid'ng  as  it 
does  as  well  uiion  her  surviving  her  husband  as  on  her  continuance  in  lite  after 
his  death,  that  no  abatement  in  the  pric(;  can  be  made  which  will  l>e  just  to  botU 

.")39 


PARTIAL    PERFORMANCE,  Al^D    COMPENSATION.  527 

quoted  in  the  note,  by  which  this  rule  is  supported,  is  certainly  very 
unsatisfactory,  and  the  argument  by  which  a  judge  sitting  in  equity 
iustities  a  party  in  the  breach  of  his  contract,  and  throws  the  shield 
of  his  decision  over  the  defaulting  party  alone,  is  in  striking  contrast 
with  ihe  utterances  of  those  equity  judges  who  have  built  up  the  sys- 
tem and  developed  its  doctrines  from  the  eternal  principles  of  right 
and  jtistice.  In  fact,  all  the  grounds  given  by  the  learned  judge 
against  awarding  compensation  are  utterly  untenable.  The  argument 
that  the  court  cannot  make  a  new  contract  for  the  parties,  would 
apply  with  exactly  the  same  force  to  every  case  in  which  an  abate- 
ment from  the  price  is  decreed ;  and,  notwithstanding  his  assertion^ 
it  is  plain,  upon  the  slightest  examination,  that  the  case  is  identical 
in  principle  and  in  its  particulars  with  all  those  instances  of  partial 
failure  or  defect  of  title  in  which  compensation  is  always  given  to  the 
vendee.  The  particular  difficulty  in  the  way  of  ascertaining  compen- 
sation alleged  by  the  judge,  is  shown  to  be  no  difficulty  at  all  by  two 
distinct  considerations.  First,  if  the  husband  himself  had  procured 
his  wife  to  refuse,  for  the  purpose  of  defeating  the  contract,  then,  as 
will  be  seen  in  the  following  paragraphs,  a  specific  performance,  with 
compensation,  will  be  decreed ;  but  on  the  reasoning  of  the  court,  this 
could  not  be  done,  since  the  difficulty  of  fixing  upon  the  amount  of 
the  abatement  is  just  as  great  in  the  one  case  as  in  the  other — the 
contingency  existing  in  the  latter  instance  as  well  as  in  the  former. 
But,  secoial///- — and  this  answer  is  overwhelmingly  conclusive — it  is 
conceded  by  the  court  that  the  vendee  can  sue  at  law  and  recover 
damages  against  the  vendor  for  the  breach  of  the  contract.     Now,  in 

parties,  without  in  effect  making:  a  new  contract  for  them,  a  contract  which  per- 
haps in  the  first  instance  neither  party  would  have  come  into — certainly  not  the 
vendor.  Receipt  of  the  purchase-money  in  full  may  have  been  the  main  object  of 
the  sale,  to  enable  him  to  pay  debts  or  carry  out  other  plans.  If  he  is  to  be  sub- 
jected to  serious  pecuniary  loss  by  his  wife's  refusal  to  join,  it  will  operate  almost 
as  powerfully  as  the  peril  of  his  imprisonment,  as  a  moral  coercion  and  compul- 
sion upon  her  to  yield  her  consent,  instead  of  that  free  will  and  accord  which 
the  law  jealously  requires  her  to  declare  by  an  acknowledgment  upon  an  examin- 
ation before  a  magistrate.  The  learned  mastei-,  to  whom  it  was  referred  to  rei)ort 
what  amount  of  purchase-money  should  be  retained  by  the  vendee  upon  mort- 
gage as  a  comjiensation  foi-  him  for  any  claim  the  wife  might  thei-eafter  make 
against  the  premises  for  dower,  reported  that  in  his  opinion  not  less  than  forty 
per  cent  of  the  price  should  be  left  in  his  hands  for  that  purpose  ;  a  result  no 
doubt  just  as  to  him,  but  how  as  to  the  vendor  who  was  personally  in  no  default  ? 
No  stronger  argument  could  be  adduced  to  show  the  impolicy  of  making  any 
decree.  Specific  performance  is  a  matter  of  grace,  and  these  are  considerations 
which  address  themselves  powerfully  to  the  conscience  of  the  chancellor."  See 
Burk  V.  Serrill,  80  Pa.  St.  413  ;  Weller  r.  Weyand.  2  Grant  Cas.  103.  [Also,  Rocs 
i\  Lockwood,  59  Hun,  181 ;  Bonnet  v.  Babbage,  19  N  Y.  Suppl.  934  ;  Flaharty  v. 
Blake  (N  J),  10  Atl.  Rep.  15S;  Graybill  v.  Braugh  (Va  ),  17  S.  E.  Rep.  S.'SS ; 
Plmn  V.  Mitchell  (Ky.),  20  S.  W.  Rep.  391  ;  Lucas  v.  Scott,  41  Ohio  St.  636.] 

540 


528  SPECIFIC  PERFORMANCE   OF  CO WR ACTS. 

the  action  at  law  the  damages  must  be  assessed  upon  exactly  the  same 
basis  as  that  upon  which  the  abatement  of  the  jyrice  would  be  ascei'taimd 
in  equity — if  not,  the  assessment  would  be  nuM-e  conjecture.  If  the 
damages  can  be  assessed  at  law,  notwithstanding  tlie  contingency, 
then,  upon  the  same  principle,  and  with  the  same  ease,  the  comjuMi- 
sation  can  be  ascertained  in  eipiity.  A,  i»arty  is  <lisinissed  from  a 
court  I'f  equity  because  the  relief  which  he  asks  is  said  tu  be  impos- 
sible ;  he  goes  to  a  court  of  law  and  obtains  the  very  same  relief,  on 
the  very  same  facts,  and  in  the  very  same  manner  in  which  lu^  asked 
to  have  it  granted  in  equity.  In  truth,  a  court  of  equity,  in  award- 
ing compensation,  does  not  necessarily  require  that  the  basis  upon 
which  the  amount  is  ascertained  should  give  a  result  with  absolute 
accuracy  ;  it  is  enough  if  the  result  can  be  fixed  with  reasonable  cer- 
tainty. Now,  by  the  aid  of  the  life  tables,  disclosing  the  probable 
life  of  the  wife,  the  present  value  of  her  dower  can  be  ascertained 
with  perfect  ease  upon  the  supposition  that  she  will  survive  her  hus- 
band; and  even  if  this  should  possiWy  be  a  little  too  large,  the  hus- 
band, who  has  entered  into  a  contract  W'hichhe  cannot  fultill,  is  in  no 
position  to  demand  favor  from  the  court,  especially  as  the  money  will 
only  be  withheld  for  a  time  by  the  vendee,  and  will  be  paid  at  the 
expiration  of  the  dower  right  by  death  of  the  wife,  whether  she  die 
before  or  after  her  husband. 

Sec.  461.  The  true  principle  is  that  laid  down  in  the  English  cases 
heretofore  quoted.  If  the  vendee  knows  that  the  vendor  is  a  married 
man,  he  knows  that  his  wife  is  entitled  to  dower,  and  tliat  she  can- 
not be  compelled  to  release  her  dower  right,  and  entering  into  the 
contract  with  such  knowledge,  he  is  not  entitled,  within  the  doctrine 
as  well  established,  to  ask  anything  more  than  the  husband  himself 
can  give.  It  is  the  vendee's  knowledge,  and  not  any  notion  of  mak- 
ing a  new  contract  for  the  parties,  which  prevents  the  purchaser  from 
obtaining  compensation.  On  the  other  hand,  if  the  vendee  entered 
into  the  contract  in  ignorance  that  the  vendor  was  manied,  and  under 
the  supposition  that  the  vendor  could  give  an  uruncumbered  title, 
then  he  ought  to  have  a  specific  performance  with  an  abatement  from, 
the  price. (1) 

(1)  The  same  doctrine  as  laid  down  by  the  Pennsylvania  court  seems  to  have 
been  adopted  in  New  Jersey.  Ilawralty  ii.  Warren,  3  C.  E.  Greene,  124  ;  Reilly 
V.  Smith,  25  N.  J.  Eq.  158  ;  Peeler  v.  L6vy,  26  N.  J,  Eq.  330.  Compai-e  the  fol- 
lowing-cases  from  other  states:  Davis  v.  Parker,  14  Allen,  94;  Woodbury  v. 
Luddy,  14  Allen,  1;  Curran  v.  Hoiyoke  Water  Co.,  116  Mass.  90;  Richinond  v. 
Robinson,  12  Mich.  193  ;  Phillips  v.  Stanch,  20  Mich.  369  ;  Yost  v.  Devault,  & 
Iowa,  60  ;  Allison  v.  Shilling,  27  Tex  4.')0;  Drewer  v.  Wall,  23  Tex.  585  ;  [Fortune 
•w.  Watkins,  94  N.  C.  304,  315  ;  Walker  v.  Kelly  (Mich.),  51  N.  W.  Rep.  934.] 

541 


PARTIAL    PERFORMAXCE,  AND    COMPENSATION.  529 

Sec.  462.  If  the  husband,  vendor,  actually  procures  or  induces  his 
wile  to  refuse  to  join  in  tlie  conveyance,  for  the  purpose  of  preventing 
an  execution  of  the  contract,  it  has  been  held  that  the  vendee  may 
obtain  a  decree  for  a  partial  i)erforniance  with  an  abatement  from  the 
price  in  respect  of  the  wife's  inchoate  dower,  which  may  be  worked 
out  by  way  of  indemnity  rather  than  compensation ;  namely,  by 
directing  a  portion  of  tlie  price  to  be  retained  by  the  vendee,  secured, 
perhaps,  by  a  mortgage,  and  to  be  paid  on  the  death  of  the  wife,  or 
the  extinction  of  her  dower  right  in  any  other  manner,(l)  And  in 
some  states  this  mode  of  apportioning  the  equities  seems  to  be  adopted 
as  the  general  rule  in  all  cases  where  the  wife  refuses  to  join  and 
release  her  dower  right. (2)  But,  as  said  above,  it  is  not  in  accordance 
with  the  well-settled  principles  of  equity  that  this  or  any  other  mode 
of  compensation  should  be  awarded  to  the  vendee,  unless  he  made 
the  contract  without  knowledge  that  the  vendor  was  married. 

Sec.  463.  And  in  this  country,  as  well  as  in  England,  where  a  hus- 
band alone,  or  a  husband  and  wife  together,  contract  to  sell  and  con- 
vey land  which  belongs  to  the  wife,  and  in  which  he  has  a  common- 
law  interest  as  husband,  the  vendee,  at  all  events  if  he  was  aware  of 
the  facts,  cannot,  of  course,  compel  her  to  convey,  nor  could  he  be 
entitled  to  a  decree  against  the  husband  for  his  interest  with  an  abate- 
ment of  the  price.  He  must  be  content  to  take  what  the  husband  can 
give,  paying  the  full  price,  or  abandon  the  contract,  or  seek  his  remedy 
at  law. (3) 

(1)  Young-  V.  Paul,  2  Stockt.  Ch.  401 ;  Peeler  v.  Levy,  26  N.  J.  Eq.  330. 

(2)  See  Wingate  V.  Hamilton,  7  Ind.  73 ;  Hazelrig  v.  Huston,  25  Ind.  481  ! 
Springle  v.  Shields,  17  Ala,  295;  Troutman  v.  Gowing-,  16  Iowa,  415;  Zebleyy.  Sears, 
38  Iowa,  507  ;  Heimburg  v  Ismay,  35  N.  Y.  Super,  Ct.  35. 

(3)  Young-  V.  Paul,  2  Stockt.  Ch.  402  ;  Clark  v.  Seirer,  7  Watts,  107,  110  ;  Evans 
V.  Kingsbury,  2  Rand.  120 ;  Watts  ti.  Kinney,  3  Leig-h,  293 ;  Glassell  v.  Thomas, 
3  Leigh,  113,  129  ;  Clai-k  v.  Reins,  12  Gratt.  98.  In  the  last  case  land  was  owned 
by  a  number  of  persons  jointly,  among  whom  was  a  married  woman  who.  held  iu 
her  own  right.  They  all,  including  the  wife  and  her  husband,  made  a  contract  to 
sell  the  land.  The  wife  refusing  to  join  in  the  deed  of  conveyance,  and  the  ven- 
dee suing  for  a  specific  performance,  the  court  decreed  against  the  other  joint 
owners  and  the  husband,  but  not  against  the  wife,  and  refused  to  compel  the 
husband  in  releasing  his  own  estate,  to  make  such  abatement  from  the  pi-ice  as 
would  compensate  the  plaintifl"  for  his  failure  to  obtain  a  conveyance  of  the  wife's 
share.  It  is.  plain,  in  all  these  cases,  that  the  principles  of  equity,  rightly  under- 
stood and  cori-ectly  applied,  require  that  compensation  should  be  given  to  the 
purchaser  if  he  buys  in  ignorance  of  the  wife's  interest.  See,  also,  in  illustra- 
tion of  the  text,  Morss  t).  Elmendorf,  11  Paige,  277;  Riesz's  Appeal,  23  P.  P. 
Smith,  485,  491  ;  Bailey  v.  James,  11  Gratt.  468;  Irick  v.  Fulton.  3  Gratt.  193; 
Graham  v.  Hendren,  5  Mimf.  185  :  Courcier  v.  Graham,  2  Ohio,  341 ;  Frarey  v. 
Wheeler,  4  Oreg.  190 ;  [  Henking  v.  Anderson,  34  W.  Va.  709  ;  Jackson  v.  Tor- 
rence,  83  Cal.  521.] 

542 


580  SFECiFiv  rt.HFoii.MAych:  OF  coyriiACTS. 

Rights  of  the  vendee  -when  the  vendor  has,  subsetiuently  to 
the  contract,  sold  or  conveyed  the  land  to  a  third  person. 

Sec.  4(54.  There  are  two  cases  to  be  cousuleretl  under  this  lieatl'.  1. 
Where  the  third  person  is  not  a  bona  fide  \n\vc\\ii^Qv  without  notice  of  the 
prior  contract;  and  2,  where  he  is  sucli  a  6o?ia^V7(?  purchaser  without 
notice.  The  distinction  between  these  two  cases,  and  the  sohition  of  the 
particular  questions  which  may  arise  under  them,  deixMid  ui>(in  certain 
doctrines  of  equity  jurisprudence  wliich  are  of  very  wide  application 
These  ^ve  first,  the  rule  that  where  the  equities  of  two  or  more  coiitiicting 
claimants  to  the  same  subject-matter,  are  equal  in  all  other  respects,  the 
one  which  is  prior  in  point  of  time  shall  prevail  ;  senmdli/,  tlie  rule 
that  where  the  equities  of  two  or  more  claimants  to  the  same  subject- 
matter  are  otherwise  equal,  the  one  who  has,  in  addition  to  his  equi- 
table interest,  obtained  the  legal  title,  must  prevail.  These  two  prin- 
ciples, on  the  other  hand,  are  constantly  affected  and  modified  by  two 
other  doctrines,  that  which  determines  the  effect  of  notice  upon  the 
rights  of  a  subsequent  claimant,  and  that  which  determines  the  effect 
of  an  actual  payment  of  or  parting  with  a  valuable  consideration  upon 
the  rights  of  the  claimants.  In  fact,  the  question  whether  the  equities 
of  the  respective  claimants  are  equal,  so  as  to  let  in  the  operation  of 
the  two  general  principles  first  stated,  or  are  unequal,  so  as  to  exclude 
the  operation  of  these  principles,  depends,  to  a  very  great  extent, 
upon  the  existence  or  absence  of  notice,  and  upon  the  actual  payment 
or  non-payment  of  a  valuable  consideration.  I  shall  not  attempt  any 
discussion  of  these  equitable  doctrines.  Even  the  most  general  and 
cursory  examination  of  the  rules  concerning  notice,  and  the  payment 
of  a  consideration  would  transcend  the  scope  and  limits  of  tliis  work, 
and  the  reader  is  referred  to  treatises  upon  equity  jurisprudence  in 
■which  these  subjects  are  discussed  in  all  their  relations.  I  shall  con- 
fine myself  to  a  statement  of  the  vendee's  rights,  in  the  two  cases 
above  mentioned,  assuming,  in  the  one  case,  that  the  subsequent 
grantee  is  not  a  bona  fide  purchaser  for  value  ;  and  in  the  other  case, 
that  he  is  such  a  bona  fide  purchaser. 

1.  Liability  of  purchaser  -with  notice  from  the  vendor. 

Sec.  465.  The  doctrine  is  well  settled  that  when  the  vendor,  after 
entering  into  a  contract  of  sale,  conveys  the  land  to  a  third  i)erson 
■who  has  knowledge  or  notice  of  the  prior  agreement,  or  who  does  not 
part  with  a  pecuniary  consideration,  or  who  for  any  otlier  reason  is 
not  a  bo?ia  fide  purchaser  for  value,  such  grantee  takes  the  land  im- 
pressed with  the  trust  in  favor  of  the  original  vendee,  and  holds  it  as 
trustee  for  such  vendee,  and  can  be  compelled  at  the  suit  of  the  ven- 
•dee  to  specifically  perform  the  agreement  by  conveying  the  land  in 

543 


PARTIAL    PERFUHMANCE,  AND    COMPENSATION.  531 

the  same  manner,  and  to  tlie  same  extent,  as  the  vendor  would  have 
been  liable  to  do,  had  he  not  transferred  the  legal  title  ;  and  such 
grantee  is  the  proper  defendant  in  the  suit  against  whom  to  demand 
the  remedy  of  a  conveyance. (1)  For  the  same  reason,  and  in  the 
same  manner,  the  rights  of  a  subsequent  vendee  maybe  cutoff  or  fore- 
closed in  a  suit  by  the  prior  purchaser. 

2.  Liability  of  bona  fide  purchaser  from  the  vendor. 

Sec.  466.  Where  the  subsequent  grantee  is  a  bona  fide  purchaser 
for  value,  the  equitable  remedy  of  a  specific  performance,  as  has 
already  been  shown  in  a  former  section,  becomes  impossible.  It  can- 
not be  enforced  against  the  vendor,  because  his  title  has  failed ;  nor 
against  the  grantee,  because  his  legal  title,  based  upon  an  actual  pecu- 
niary consideration,  and  upon  the  absence  of  notice,  gives  him  a 
superiority  over  the  plaintiff's  equity. (2)  Even  when  the  vendor  has 
purposely  conveyed  the  land  to  such  a  grantee,  with  the  express  de- 
sign of  defeating  the  prior  contract,  the  purchaser  under  that  agree- 
ment is  left  to  his  legal  action. (3)  The  plaintiff,  in  an  equitable 
action  brought  to  enforce  specific  performance,  who  fails  to  obtain  that 
relief  because  the  land  has  been  conveyed  by  the  vendor  to  a  subse- 
quent grantee,  may,  under  certain  circumstances,  recover  in  the  same 
proceeding  a  judgment  for  damages  against  the  vendor,  instead  of 
being  forced  to  bring  a  new  action  for  that  purpose.  The  discussion 
of  this  particular  question,  and  of  all  others  concerning  the  award 

(1)  Flagg-v.  Mann,  2  Sumner  487  ;  Foss'W.  Haynes,  31  Me.  86  ;  Snowman  ■«.  Har- 
ford, 57  Me.  397  ;  Laverty  v.  Moore,  33  N.  Y.  658  ;  Wiswall  v.  McGowan,  1  Hoff.  Ch. 
125  ;  FuUerton  v.  McCurdy,  4  Lans.  132;  Haughwout  v.  Murphy,  6  C.  E.  Green,  118; 
7  C.  E.  Green,  .531 ;  Coates  v.  Gerlach,  8  Wright,  43  ;  Kerr  v.  Day,  2  Han-is,  112, 117; 
Smoot  V.  Rea,  19  Md.  398;  Hunter  v.  Bales,  24  Ind.  299;  Dean  v.  Mauzey,  33  111.  227; 
Keegan  v.  Williams,  22  Iowa,  378  ;  St.  Paul  Division  -?;.  Brown,  9  Minn.,  157;  Bryant 
V.  Booze,  55  Geo.  438  ;  Gregg  v.  Hamilton,  12  Kans.  333  ;  McMorris  v.  Crawford,  15 
Ala.  271 ;  Dickinson  v.  Any,  25  Ala.  424 ;  Johnson  v.  Bowden,  37  Tex.  621 ; 
Scarborough  v.  Arrant,  25  Tex.  129;  [Boyd  v.  Brinckin,  55  Cal.  427,  430.]  The 
same  doctrine  is  settled  in  England.  Barnes  v.  Wood,  L.  R  8  Ec^.  424  ;  Potter  v. 
Sanders,  6  Hare,  1.  It  is  held  in  Warren  v.  Richmond,  53  111.  52  ;  Little  v. 
Thurston,  58  Me.  86,  that  a  subsequent  sale  by  the  vendor  to  a  thii-d  person 
entitles  the  prior  purchaser  to  treat  the  contract  as  rescinded.  The  following 
cases  are  special  in  their  facts,  but  depend  upon  the  principle  stated  in  the  text : 
Bird  V.  Hall,  30  Mich.  374  ;  Cole  v.  Cole,  41  Md.  301  ;  Smith  v.  Kelley,  56  Me.  64  ; 
Borders  v.  Murj^hy,  78  111.  81  ;  Frantz  v.  Orten,  75  111.  100 ;  Rostetter  v.  Grant, 
18  Ohit>-St.  126 ;  Reavis  v.  Reavis,  50  Ala.  60. 

(2)  Hatch  V.  Cobb,  4  Johns.  Ch.  559 ;  Lewis  v.  Yale,  4  Flor.  418  ;  Sims  V. 
McEwen,  27  Ala.  184  ;  Scott  v.  Billgerry,  40  Miss.  119  ;  Richmond  v.  Dubuque  R. 
R.,  33  Iowa,  422.;  and  see  the  cases  cited  under  §  464,  and  ante,  §  294. 

(3)  Hatch  V.  Cobb,  4  Johns.  Ch.  559 ;  Kempshall  v.  Stone,  5  Johns.  Ch.  194 ; 
Smith  V.  Kelley,  56  Me.  64  ;  and  ante,  §  94. 

544 


of  damages  in  place  of  or  in  addition  to  the  equitable  remedy,  is  rcv 
served  for  the  section  immediately  following  the  present  one.(l) 

Rights   of  vendee   -when  vendor    conveys  "while   the   suit  is 
pending. 

Sec.  467.  If,  during  the  pendency  of  a  suit  brought  by  the  pur- 
chaser to  compel  a  specific  pert'oruuince,  the  vondt)r  ((lefciidant)  cnii 
veys  the  land  to  a  third  ikm-.-o.i,  the  court  of  equity  does  not  thereby 
lose  its  jurisdiction,  even  though  the  subject-matter  shouhl  have  been 
put  beyond  its  reach  by  a  transfer  to  a  bona  fide  grantee  foi-  value. 
It  is  still  able  to  award  whatever  remedy  is  adapted  to  the  particular 
circumstances  of  the  case,  either  pecuniary  damages  against  thi; 
vendor,  or,  by  bringing  in  the  grantee  as  an  additional  defendant,  a 
decree  for  the  payment  of  the  purchase-price  by  the  vendor  or  his 
grantee  to  the  plaintiff,  or  a  specific  performance  against  the  grantee 
himself,  if  he  is  not  a  bona  fide  purchaser. (2)  If  the  rules  of  iirocedure 
have  been  observed  by  the  plaintiff,  and  he  his  properly  tiled  a  notice 
oi  lis  pendens,  it  is,  of  course,  impossible  for  the  vendor  to  convey  the 
land  during  the  suit  beyond  the  reach  of  the  plaintiff  and  of  the 
court. 

Rights  of  vendee  to  unpaid  purchase-money  due  the  vendor. 

Sec.  468.  Although  a  conveyance  before  notice  may  carry  the  land 
beyond  the  reach  of  the  prior  vendee,  yet  the  trust  which  had  affected 
the  land  in  the  hands  of  the  vendor  will  attach  to  the  unpaid  pur- 
chase-money due  from  the  grantee  to  the  vendor.  This  purchase- 
money  becomes  a  fund  taking  the  place  by  substitution  of  the  land. 
The  vendee  can,  therefore,  compel  the  grantee  to  pay  over  to  himself 
whatever  portion  of  the  purchase-price  is  yet  unpaid,  and  can  recover 
from  the  vendor  whatever  portion  the  latter  has  received.  As  against 
the  grantee  he  is  subrogated  to  the  rights  of  the  vendor,  and  as  against 
the  vendor  he  can  claim  the  money  in  place  of  the  land.  Even  if  the 
subsequent  gi'antee  is  not  di  bona  fide  purchaser,  so  that  the  vendee 
can  reach  the  land  in  his  hands,  such  vendee  may,  if  he  elect,  waive 
his  right  to  the  land,  may  treat  the  conveyance  as  absolute,  and  may 
transfer  his  claim  to  the  purchase-price  in  the  same  manner  and  to  the 
same  extent  as  above  stated. (:])  Equity  never  suffers  a  trust  to  be 
defeated  by  a  conversion  of  the  subject-matter,  so  long  as  the  trust 
fund,  under  whatsoever  form,  can  be  traced  in  the  hands  of  those  who 
would  be  liable  in  respect  of  the  original  subject-matter,  if  it  had  re- 
mained in  specie  under  their  control. 

(1)  See  Sect.  V.  of  this  chapter. 

(2)  Snowman  r.  Ilai-ford,  57  Me.  307  ;  Masson's  Appeal,  20  P.  F.  Smith,  27.  21t  ; 
Chapman  v.  Mad  River  R.  R.,  6  Ohio  St.  119,  139. 

(3)  Haughwont  v.  Mm-phy,  7  C.  E.  Green,  .')31  ;  Dustin  v.  Newcomer.  8  Ohio,  49  ; 
Oliver  v.  Croswell,  42  111.  41 ;  Tenney  v.  State  Bank,  20  Wise.  152,  164. 

545 


DAMAGES  GIVEN  IN  PLACE  OF  SPECIFIC  PERFORMANCE.        533 

SECTION  V. 

Damages  when  given  in  place  of,  or  in  addition  to,  a  specific  performance. 

Section  469.  In  addition  to  the  compensation — which  in  most  cases 
takes  the  form  of  an  abatement  of  the  purchase-price  agi-eed  to  be 
paid — awarded  to  a  vendee  in  connection  with  a  partial  enforcement 
of  the  contract,  a  court  of  equity  may,  under  certain  circumstances, 
as  has  already  been  shown,  grant  the  relief  of  damages  for  a  breach 
by  the  vendor  of  the  whole  or  some  portion  of  his  agreement,  either 
in  addition  to  or  in  place  of  the  purely  equitable  remedy  of  a  specific 
performance.  That  a  court  of  equity  has  the  power,  in  a  proper  case, 
to  do  full  justice  and  confer  conq)lete  relief  in  one  judicial  proceed- 
ing, by  giving  damages  in  connection  with  some  other  kind  of  relief, 
and,  even  alone,  is  a  familiar  doctrine.  I  purpose  in  the  present  sec- 
tion to  show  how  far,  and  under  what  circumstances,  this  doctrine  is 
applied  in  suits  for  a  specific  performance.  Before  proceeding  with 
any  examination  of  the  subject  in  general,  or  of  its  particular  doc- 
trines and  rules  as  enforced  by  the  courts  of  this  country,  a  brief 
statement  of  the  recent  legislation  concerning  it  in  England,  and  of 
the  judicial  construction  put  upon  that  legislation,  will  be  instruc- 
tive ;  especially  since  the  fundamental  principles  of  the  English  stat- 
utes have  been  incorporated  with  more  or  less  definiteness  into  the 
reformed  system  of  procedure  which  now  prevails  in  so  many  of  the 
American  commonwea-lths. 

Lord  Cairns'  Act. 

Sec.  470.  By  the  act  commonly  known  as  "  Lord  Cairns'  Act," 
which  went  into  operation  in  1858,(1)  it  was  provided,  among  other 
things,  that  "in  all  cases  in  which  the  court  of  chancery  has  jurisdic- 
tion to  entertain  an  application  *  *  *  for  the  specific  perform- 
ance of  any  covenant,  contract,  or  agreement,  it  shall  be  lawful  for 
the  same  court,  if  it  shall  think  fit,  to  award  damages  to  the  party  in- 
jured, either  in  addition  to  or  in  substitution  for  such  *  *  * 
specific  performance,  and  such  damages  may  be  assessed  in  such 
manner  as  the  court  shall  direct."  In  interpreting  this  statute  the 
English  courts  have  settled  the  doctrine  that  it  does  not  enlarge  the 
jurisdiction  of  equity  by  extending  its  power  to  grant  relief  over  any 
cases  which  did  not  previously  fall  within  its  scope.  The  design  of 
the  legislation  was  to  enable  a  court  of  equity  to  do  complete  justice 
in  cases  where  it  previously  had  jurisdiction  to  decree  a  specific  per- 

(1)  The  Chancery  Amendment  Act,  21  and  22  Vict.,  ch.  27,  §  1. 
546 


534  SPKCltlC   J'KHFOh'MA.WK    OF   COSTIiACT^. 

formance,  but  in  whie-li,  fioui  the  ispeciul  tiiTumstauces,  events, or  acts 
of  the  defendiiut,  that  peculiar  relief  had  been  nia<h'  iiupracticable, 
and  the  plaintitl'  would,  therefore,  be  forced  to  sue  at  law  f(ir<hin>a^es. 
In  order  that  the  statute  may  ap[)ly,  the  casein  wliicli  damages  are 
demanded  and  given,  must  be  one  of  a  class  over  which  cijuity  had 
and  still  has  jurisdiction  to  compel  a  specific  performance.  It  is  not 
necessary,  however,  that  the  case  should  be  one  in  which,  upon  its 
particular  facts,  the  court  would,  or  even  could,  have  granted  tliat 
remedy.  Indeed,  the  statute  is  expressly  directed  at  this  latter  kind 
of  cases.  Before  its  passage,  if  a  case  belonged  to  a  class  over  which 
equity  has  an  undoubted  jurisdiction — for  example,  if  it  were  one 
arising  upon  a  contract  for  the  sale  of  land — but  if  from  its  i)articular 
circumstances,  or  the  acts  of  .the  defendant,  the  relief  of  a  specific 
performance  had  been  made  impossible,  so  that  at  the  time  of  com- 
mencing his  suit  the  plaintiff's  right  to  the  equitable  remedy  was  lost, 
then  a  court  of  equity  had  no  power  to  give  damages,  because  it  had 
no  power  from  the  special  facts  of  that  particular  case  to  grant  a  spe- 
cific enforcement,  and  the  plaintiff  was,  therefore,  confined  to  his 
Action  at  law.  The  very  object  of  the  statute  was  to  change  this  rule, 
and  to  enable  a  court  of  equity  to  give  damages  in  such  a  case.  As 
an  illustration,  if  after  entering  into  a  contract  for  the  sale  of  certain 
land,  the  vendor  should,  before  completion,  convey  the  property  to 
another  bona  fide  purchaser,  the  vendee  w^ould  not  be  able  to  compel  a 
specific  execution  of  the  agreement,  since  the  vendor  could  not  make 
a  title.  Prior  to  the  statute,  the  vendee  could  not  have  maintained 
a  suit  in  equity  for  the  purpose  of  recovering  damages,  because  at  the 
time  of  filing  his  bill  there  was  no  foundation  of  fact  upon  which  to 
"base  a  decree  of  specific  performance ;  but  under  the  statute  the  suit 
can  be  maintained  merely  for  damages.  It  is  plain  that  unless  the 
statute  has  effected  this  change,  it  has  done  no  more  than  enact  the 
rule  which  had  long  existed  as  a  part  of  the  equity  jurisdiction. 
I  have  dwelt  thus  carefully  upon  the  construction  given  to  the 
English  statute,  because  it  must  be  contrasted  with  the  narrow 
course  of  decision  which  has  been  adopted  by  the  courts  in  some 
of  our  states  in  applying  a  legislation  involving  the  same  general 
principles. 

Sec.  471.  The  foregoing  interpretation  is  fully  sustained  by  the 
decisions.  It  is  settled  that  the  act  does  not  extend  the  jurisdiction 
of  equity  to  any  cases  or  class  of  cases,  w^hich  were  not  jireviously 
within  the  scope  of  that  jurisdiction.(l)     A  court  of  equity  is  not 

(1)  Wicks  V.  ITuiit.  .Johns.  372,  380. 

547 


DAMAGES    GIVEN  IN  PLACE   OF  SPECIFIC  PERFORMANCE.      535 

enabled  by  the  statute  to  grant  the  relief  of  damages  in  any  cases 
except  these  over  which,  as  a  class,  it  has  the  jurisdiction  to  decree  a 
specific  enforcement,  and  the  damages  when  given  must  be  in  place 
of  or  in  addition  to  that  e(iMitable  remedy.  In  other  words,  where 
the  plaintiff  fails  to  establish  any  covenant,  contract  or  agreement  of 
which  a  specific  performance  can  be  decreed,  a  court  of  equity  has  no 
power  under  the  statute  to  grant  the  relief  of  damages. (1) 

Sec.  472.  As  illustrations  of  this  doctrine,  it  has  been  held  in  a 
suit  brought  upon  an  agreement  to  enter  into  a  partnership,  that  a 
court  of  equity  had  no  jurisdiction  to  enforce  specific  performance  of 
such  contracts,  and,  therefore,  had  no  authority  to  award  damages  for 
their  breach  ;  (2)  and  that  as  a  contract  of  agency  cannot  be  specifi- 
cally enforced,  damages  for  its  breach  cannot  be  given ;  (3)  also,  that 
as  a  contract  to  borrow  a  sum  of  money  cannot  be  specifically  enforced, 
damages  will  not  be  given  in  a  suit  in  equity  against  a  defendant 
who  has  refused  to  accept  a  loan  of  money  which  he  had  agreed  to 
take. (4)  It  is  also  held  that  damages  will  not  be  granted  when  the 
specific  performance  of  a  contract  has  been  prevented  or  made 
impracticable  by  the  acts  of  the  plaintiff  himself ;  (5)  and  that  the 
authority  under  the  statute  to  give  damages  is  discretionary,  and  will 
not  be  exercised  where  the  question  is  one  which  can  be  better  deter- 
mined in  an  action  at  law. (6) 

Sec.  473.  On  the  other  hand,  it  is  settled  that  the  only  condition  to 
the  application  of  the  statute  is  the  fact  that  the  court  has  jurisdic- 
tion to  grant  the  relief  of  specific  performance  in  the  case,  even  though, 
such  relief  cannot  be  extended  to  the  whole  of  the  contract.  If,  there- 
fore, a  court  of  equity  has  jurisdiction  to  decree  a  specific  execution 
of  a  part  of  a  contract,  it  may  in  the  same  suit  award  damages  for 
the  breach  of  other  parts  or  provisions  of  the  contract  which  are  of 

(1)  Lewers  v.  Earl  of  Shaftesbury,  L.  R.  2  Eq.  270  ;  Scott  v.  Rayment,  L.  R. 
7  Eq.  112;  Rogers  v.  Challis,  27  Beav.  175;  Chinnock  v.  Sainsbury,  30  L.  J. 
(N.  S.)  Ch.  '409  ;  Ferguson  v.  Wilson,  L.  R.  2  Ch.  77  ;  Durell  v.  Pritchard,  L.  R. 
1  Ch.  244. 

(2)  Scott  V.  Rayment,  L.  R.  7  Eq.  112. 

(3)  Chinnock -u.  Sainsbury,  30  L.  J.  (N.  S.)  Ch.  409. 

(4)  Rogers  v.  Challis,  27  Beav.  175. 
{.'5)  Collins  V.  Stubly,  7  W.  R.  710. 

(6)  Durell  v.  Pi-itchard,  L.  R.  1  Ch.  244.  In  Corporation  of  Hythe  v.  East,  L. 
R.  1  Eq.  (520,  the  plaintiff  had  obtained  a  decree  for  the  specitic  performance  of 
a  covenant,  and  moved  for  an  order  assessing  his  damages  for  the  breach  of  such 
covenant  up  to  the  then  present  time  ;  but  the  court  said  that  it  had  no  juiisdic- 
tion  under  Lord  Cairn's  Act  to  make  the  assessment 

548 


I 


536  SPECIFIC  PERFORMANCE   OF  COyiRACTS. 

such  a  nature  that  they  cannot  be  specilically  enforced.(l)  And  in 
cases  where  for  any  special  cau.ses  tlie  court  declines  tofj;nuit.  a  sjicciHc 
performance,  it  may,  in  place  thereof,  give  a  judgment  for  dam« 
ages.(2) 

Hules  prevailing  in  this  country. 

ISec.  474.  1  pass  now  from  this  English  legislation  to  a  considera/- 
tion  of  the  circumstances  under  which  equity,  in  virtue  of  its  own 
inherent  jurisdiction,  and  without  any  statutory  r.id,  will  grant  the 
relief  of  damages;  and  I  shall  coniine  the  discussion  to  the  rules 
•which  have  been  formulated  by  the  decisions  of  the  American  courts. 
All  the  instances  in  which  equity  thus  aw^ards  damages,  either  in 

(1)  Middleton  v.  Greenwood,  2  DeG.  J.  &  S.  142  ;  Soames  v.  Edge,  Johns.  6G9  • 
and  see  Lillie  v.  Legh,  .S  DeG.  &  J.  204.  In  the  first  of  these  cases  the  detendun^ 
made  a  written  contract  whereby  he  agreed  to  give  the  plaintiff'  a  lease  of  a  cer- 
tain public  house  for  a  term  of  years,  and  fui-ther  agj-eed  to  make  certain  altera- 
tions and  repaii's  in  the  building,  namely,  to  construct  a  spirit  vault,  put  in  plate- 
glass  windows,  paint  all  the  wood-work,  and  repair  the  roofs.  The  plaintiff'  sued, 
asking  a  specific  perfoi-niance  of  the  contract,  so  far  as  the  agreement  to  give  a 
lease  went,  and  damages  for  defendant's  breach  of  the  other  provisions  which 
it  was  conceded  could  not  be  enforced,  and  this  relief  was  granted  by  V.  C.  Page- 
Wood,  and  his  decree  wasaflirmed  by  the  lords  justices.  The  case  of  Soam<>s  v. 
Edge,  supra,  was  similar  with  the  parties  reversed.  Plaintiff"  agreed  to  give  a 
lease  of  certain  lands  to  defendant,  who  was  in  possession  of  them,  as  soon  as 
defendant  should  have  pulled  down  a  certain  house  thereon  and  built  a  new  one  ; 
and  defendant  agreed  that  he  would,  within  a  specified  time,  pull  down  the  old 
house,  erect  a  new  one,  and  accept  the  lease.  A  suit  being  brought,  a  decree  was 
made  directing  a  specific  performance  of  the  agreement  to  take  the  lease,  and 
awarding  damages  for  defendant's  breach  of  his  agreement  to  build,  which  latter 
agreement,  it  was  conceded,  could  not  be  specifically  enforced.  Pagb-Wcod,  V. 
C,  gave  the  following  reasons  for  the  decision  :  "  It  is  perfectly  true  that  I  can- 
not act  until  I  have  jurisdiction,  and  under  the  existing  law,  before  the  passage 
of  Lord  Cairn's  Act,  a  coui-t  of  equity  had  not  jurisdiction  in  respect  of  a  building 
contract  of  this  description.  But  it  would  have  had  jurisdiction,  before  the 
passing  of  the  act,  to  compel  the  defendant  to  accept  a  lease.  The  defendant  hsis 
agreed  to  accept  a  lease  when  required,  and  the  court  has,  therefore,  jurisdiction. 
The  statute  would  not  apply  to  a  case  where  the  object  of  the  agreement  was 
simply  the  building  of  the  house  under  such  conditions,  and  on  such  terms  that 
it  may  be  assumed  the  court  could  not  grant  specific  performance  ;  and  in  such  s 
case  a  plaintiff"  could  not  file  a  bill  to  have  damages  instead  of  specific  perform- 
ance, because  there  would  be  no  jui-isdiction.  But  there  is  a  distinct  agreement 
here,  not  only  to  build  the  house,  but  to  accept  the  lease.  The  court  having, 
therefore,  acquired  jurisdiction,  may  give  damages  either  in  addition  to  or  in 
substitution  fur  specific  performance.  The  meaning  of  the  statute  can  only  be, 
that  where  the  court  has  jurisdiction  in  the  suit,  it  may  award  damages  in  the 
substitution  for  specific  performance."  See,  also,  De  Brassac  v.  Martin.  11  W. 
R.  1020;  Hower.  Hunt,  31  Beav.  420;  Cory  v.  Thames,  etc.,  11  W.  R.  6S9 ; 
Norris  V.  Jackson,  1  Johns.  &  H.  319  ;  3  Gift".  396. 

(2)  See,  as  illustration,  Howe  v.  Hunt,  8  Jur.  (N.  S.)  834  ;  Samuda  v-  Lawford» 
8  Jur.  (N.  S.)739. 

540 


DAMAGES  GIVEN  IN  PLACE  Oh  SFEClhlC  rEKtORMANCE.       53T 

place  of  or  iu  addition  to  aome  other  special  remedy,  are  particular 
applications  of  the  one  general  principle,  that  complete  justice  should 
be  doue  between  litigant  parties  whenever  jurisdiction  has  been 
acquired  over  them  to  grant  any  relief.  This  doctrine  is  well  estab- 
lishvi.l,  and  is,  indeed,  too  familiar  to  require  the  citation  of  authority,, 
that  whenever  a  court  of  equity  has  once  acquired  jurisdiction 
of  a  cause,  it  Tvill  retain  such  cause  in  order  to  do  full  and  complete 
justice  between  the  parties  with  respect  to  the  subject-matter.  To  this 
lend,  when  jurisdiction  has  been  obtained  on  other  grounds,  and  for  the 
purpose  of  administering  an  equitable  remedy,  damages  may  be 
assessed  and  adjudged  in  lieu  of  or  as  ancillary  to  the  equitable 
relief,  so  that  the  plaintiff  may  not  be  put  to  the  trouble,  expense, 
and  delay  of  a  second  suit  brought  in  another  tribunal. (1) 

Sec.  475.  All  further  discussion  consists  simply  in  applying  this 
doctrine  to  different  cases  of  specific  performance.  The  rule  was  set- 
tled prior  to  any  statutory  modification,  and  still  prevails  in  most  of 
the  states,  that  where  a  specific  performance  was  impossible  at 
the  time  of  commencing  the  suit,  and  this  fact  was  known  to  the 
plaintiff,  no  recovery  of  damages  can  be  given  for  the  defendant's 
violation  of  his  contract.  If,  through  defect  in  his  title,  or  any  other 
cause,  the  defendant  was  never  able  to  complete  by  a  conveyance,  or 
if  the  defendant  has,  subsequently  to  his  agreement,  disabled  himself 
from  completion  by  conveying  the  subject-matter  to  a  &owa  7?(ie  grantee 
for  value,  and  the  vendee  being  aware  of  the  real  condition  of  affairs, 
brings  his  suit  for  a  specific  performance,  knowing  that  such  remedy 
cannot  be  granted,  then  as  a  general  rule  the  court  of  equity  will  not 
retain  the  action  for  the  purpose  of  awarding  damages  to  the  plaintiff 
in  place  of  his  specific  relief,  but  will  dismiss  the  suit  and  leave  the 
plaintif!'  to  pursue  his  remedy  in  the  form  of  a  legal  action.(2)  Some 
exceptions  to  this  rule  have  been  admitted  by  American  decisions, 
which  will  be  noticed  hereafter.  The  knowledge  required  on  the 
plaintiff's  part  is  not  necessarily  an  absolute  certainty,  an  affirmative 
intellectual  conviction.  If  at  the  time  of  bringing  his  suit  the  plaintiff 
is  informed  of  the  real  facts — of  the  defect  in  the  defendant's  title,  or 
of  the  defendant's  subsequent  conveyance,  and  there  are  no  other 

(1)  Wiswall  V.  Mcaown,  2  Barb.  270  ;  Holland  v.  Anderson,  38  M;).  55  ;  Story 
Eq.  Jill-.,  §^  794,  796-798. 

(2)  Hatch  V.  Cobb,  4  Johns.  Ch.  559  ;  Kempshall  v.  Stone,  5  Johns.  Ch.  194  ; 
Moi-ss  V.  Elmendorf,  11  Paige,  277  ;  Smith  v.  Kelley,  56  Me.  64 ;  McQueen  v. 
Chouteau,  20  Mo.  222  ;  Doan  v.  Mauzey,  33  111.  227 ;  Gupton  v.  Gupton,  47  Mo. 
37  ;  Milkman  v.  Ordway,  106  Mass.  232,  253  ;  Sternberger  v.  McGovern,  56  N.  Y. 
12,  20  ;  [Morgan  v.  Bell,  3  Wash.  St.  554  ;  Hurlbut  v.  Kantzler,  112  111.  483  ;  Sum- 
merlin  V.  Fronteriza  Mining,  etc.,  Co.,  41  Fed.  Rep.  249 ;  Lacombe  v.  Forstall's 
Sons,  123  U.  S.  562;  Sawe  v.  Ferris,  (111.)  34  N.  E.  Rep.  52;]  and  see  cases  in 
the  following  notes. 

550 


538  SPECIFIC   PEKFOIiMA.XCE    OF   COyjRACTS. 

circumstances  which  could  alter  the  presumption — then  he  is  presumed 
to  know  the  legal  consequences  of  those  facts;  the  law  infers  his 
knowledge  that  a  specilic  enforcement  cannot  be  decreed.  The  reas<»n 
given  for  this  rule,  is  the  want  of  any  jiu'isdiction  in  a  court  of  equity 
to  entertain  a  suit  for  a  specilic  performance  under  the  circumsiances. 
At  the  very  commencement  of  the  proceeding  the  court  has  no  jin-is- 
diction  to  grant  the  specilic  remedy,  and,  therefore,  the  case  does  not 
fall  within  the  general  principle  stated  above  as  the  foundation  of  all 
relief  of  damages  granted  by  courts  of  equity.  Although  this  reason- 
ing is  based  upon  an  an  entire  misconception  of  the  meaningof  "jur- 
isdiction," yet  it  has  been  generally  adopted  by  the  courts,  and  the 
rule  resulting  from  it  has  become  so  firmly  settled  that  even  the 
sweeping  reforms  made  by  the  new  procedure  have  not  led  the  courts 
to  change  it  in  most  of  the  states  where  that  procedure  prevails. 

Sec.  476.  If,  at  the  time  of  commencing  the  suit  for  a  specific  per- 
formance, the  remedy  was  possible,  the  vendor  being  owner  of  the  land 
by  a  sufficient  title,  but  pending  the  action  the  defendant  puts  it 
out  of  his  OTvn  po"wer  to  perform  his  agreement,  and  renders  the 
specific  relief  imposible  by  conveying  the  subject-matter  to  another  bo7ia 
fide  grantee  for  value,  then,  on  these  facts  being  disclosed,  the  court  of 
equity  will  not  dismiss  the  action  and  put  the  plaintiff  to  the  delay 
and  trouble  of  a  second  proceeding,  but  will  assess  his  damag;\s  and 
grant  a  pecuniary  judgment  instead  of  the  specific  relief  originally 
demanded. (1)  It  is  plain  that  this  case  fully  satisfies  the  general 
principle  of  equity  before  stated;  for  the  court  obtained  jurisdiction 
over  the  parties  and  over  the  subject-matter,  and,  of  course,  there 
was  no  knowledge  on  the  plaintiff's  part  wdiich  should  have  prevented 
him  from  bringing  the  suit. 

Sec.  477.  The  American  decisions,  by  a  strong  preponderance  of 
authority,  have  gone  nmch  further  than  the  rule  laid  down  in  the  last 
paragraph.  Although  there  is  some  dissent  to  be  found  in  earlier 
authorities,  the  following  doctrine  is  now  fully  established  throughout 
the  states.  If,  at  the  time  of  concluding  the  contract,  a  specilic  per- 
formance was  possible,  and  subsequently  to  that  date,  but  before  the 
commencement  of  the  suit,  the  vendor  disables  himself  from  perf»i  m- 

(1)  "Woodcock  V.  Bennett,  1  Cow.  711;  MorsstJ.  Elmendorff,  11  Paige,  277; 
Milkman  v.  Ordway,  106  Mass.  232,  2r)3,  per  Wells,  J.;  and  see  cases  cited  in  the 
next  following-  note.  This  rule  was,  as  it  seems,  the  extent  to  which  the  English 
decisions  were  willing  to  go,  prior  to  "  Lord  Caii-ns'  Act  ;  "  although  tlici-o  are  a 
few  earlier  cases  which  adopted  the  rule  stated  in  the  next  paragi-aph.  As  to  the 
correctness  of  this  parti(nilar  i-nle,  there  has  never  V)een  any  doiilit ;  all  th<> 
authorities,  Knglish  and  American,  are  here  in  agreement. 

551 


DAMAGES  GIVEN  IN  PLACE  OF  SPECItIC  PERFORMANCE.       539 

iiig  by  a  conveyance  to  a  third  person,  and  even  if  the  disability  ex- 
isted at  the  very  time  of  entering  into  the  agreement  by  reason  of  a 
defect  in  the  vendor's  title,  right,  or  capacity  to  complete  the  contract 
on  his  part,  then  in  either  of  these  cases  a  court  of  equity  will  retain 
the  action,  and  award  damages  to  the  vendee  (plaintiff)  in  place  of  the 
specific  equitable  relief,  provided  the  plaintiff  commenced  his  ac- 
tion for  a  specific  performance  -without  kno-wledge  of  the  exist- 
ing disability,  in  good  faith,  supposing  and  liaving  reason  to  suppose 
himself  entitled  to  such  equitable  remedy,  and  the  impossibility  of 
specific  performance  is  first  disclosed  by  the  defendant's  answer  or  in 
the  course  of  the  hearing.  In  other  words,  where  the  plaintiff  (vendee) 
brings  his  suit  for  a  specific  enforcement  in  ignorance  of  any  impos- 
sibility, and  supposing  and  hating  reasoti  to  suppose  himself  entitled 
to  that  equitable  remedy,  and  the  impossibility  of  performance  is  first 
disclosed  to  him  in  the  proceedings  after  the  commencement  of  the 
action,  it  is  immaterial  whether  this  impossibility  actually  arose  after 
the  contract  w^as  concluded  by  means  of  the  defendant's  voluntary 
act  in  conveying  away  the  land,  or  whether  it  existed  at  the  very  time 
of  entering  into  the  agreement  by  means  of  a  defect  in  the  title  or 
any  other  cause.  In  either  case,  the  action  having  been  brought  in 
good  faith,  the  court  of  equity  will  not  dismiss  it  upon  the  dis- 
closure of  the  real  facts,  but  will  proceed  to  assess  the  plaintiff's 
damages,  and  will  grant  him  a  pecuniary  judgment  in  lieu  of  the 
equitable  remedy  which  he  asked  and  to  which  he  supposed  himself 
entitled.(l) 


(1)  The  doctrine  resulting  from  the  American  cases  is  so  well  stated  by  "Wells, 
J.,  in  the  recent  case  of  Milkman  v.  Ordway,  106  Mass.  232,  253,  that  I  shall  give 
the  passage  in  full :  "  It  is  settled  with  little  or  no  conflict  of  authority,  that 
where  a  defendant  in  a  bill  in  equity  disenables  himself,  pending  the  suit,  to 
comply  with  an  order  for  specific  relief,  the  coui-t  will  proceed  to  aflford  relief  by 
way  of  compelling  compensation  to  be  made  ;  and  for  this  purpose  will  retain 
the  bill,  and  determine  the  amount  of  such  compensation,  although  its  nature 
and  measure  are  precisely  the  same  as  the  party  would  otherwise  i-ecover 
as  damages  in  an  action  at  law.  There  is  also  authority  for  the  application  of  the 
same  rule  where  the  disability  was  caused  before  suit,  but  after  the  date  of  the 
agreement.  In  this  country  it  seems  to  be  generally  accepted  as  the  rule,  pro- 
vided the  plaintiff  In-ought  his  bill  without  knowledge  of  the  disability,  in  good 
faith  seeking  the  equitable  relief,  supposing  and  ha\'ing  reason  to  suppose  him- 
self entitled  to  such  equitable  relief.  In  the  opinion  of  a  majority  of  this  court, 
thei-e  is  equal  ground  in  equity  for  applying  the  same  rule  with  the  same  quali- 
fication, to  all  cases  where  a  defect  of  title,  risrht,  or  capacity  in  the  defendant  to 
fulfill  his  contract,  is  disclosed  by  his  answer  or  in  the  course  of  the  heai-ing." 
That  is,  to  cases  where  the  defect  or  impossibility  actually  existed  at  the  date  of 

552 


540  SPECIFTC  PEliFORMANCR   OF  COXTKACTS. 

Sec.  478.  In  some  of  the  states  the  courts  have  gone  a  step  further, 
and  liave  allowed  damages,  even  though  the  plaintiff  knew  or  luid 
reason  to  know  at  the  time  of  bringing  liis  suit  that  a  specilic  per- 
formance was  impossible;  but  only  when  such  relief  in  the  equity 
action  is  necessary  to  prevent  a  failure  of  justice.  As  au  'lliistj-tition, 
if  a  suit  is  brought  to  speciiically  enforce,  a  parol  contract  withiu  the 
statute  of  frauds,  the  relief  being  sought  on  the  grouii<l  of  a  part  per- 
formance, and  it  turns  out  on  the  trial  that  there  has  been  no  sutli- 
cient  part  performance,  or  for  any  other  defect  or  failure  the  specific 
relief  is  improper,  damages,  according  to  certain  decisions,  may  be 
given  on  the  ground  that  otherwise  the  plaintiff  would  be  without 
remedy,  since  no  action  could  be  sustained  on  the  agi-eement  in  a  court 
of  law.(l)  According  to  other  authorities  the  plaintiff  may,  under 
the  same  circumstances,  recover  back  the  moneys  which  he  has 
advanced  or  expended  under  and  by  virtue  of  the  parol  agreement, 

the  contract.  The  recent  case  of  Chartier  xi.  Marshall,  56  N.  H.  478,  fully  sustains 
the  rule  as  laid  down  in  the  latter  clause  of  the  foregoing  extract,  and  in  the 
text.  The  plaintiflF  was  held  entitled  to  damages  where  the  impossibility  disclosed, 
during  the  proceedings  in  the  action,  had  actually  existed  from  the  inception  of 
the  conti act,  being  caused  by  a  defect  in  the  \eiulor's  title.  See,  also,  Denton  v. 
Stewart,  1  Cox,  2.58 ;  Greenaway  v.  Adams,  12  Ves.  393  ;  Att'y-Gen.  v.  Deej-tield 
River  Bridge,  105  Mass.  1  ;  Peabody  v.  Tarbell,  2  Ciish.  226  ;  Andrews  r.  Bi-own, 
3  Cush.  130 ;  Pingree  v.  Coffin,  12  Gray,  288,  305 ;  Woodcock  v.  Beinielt,  1  Cow. 
711  ;  "Wiswall  v.  McGown,  1  Hoff.  Ch.  125 ;  Phillips -?».  Thompson,  1  Johns.  Ch.  131 ; 
Parkhurst-w.Van  Coi-tlandt,  1  Johns.  Ch.  273  ;  Morss-w.  Elmendorfr,ll  Paige,  277; 
Woodward  v.  Hai-ris,  2  Barb.  439  ;  Berry  v.  Van  Winkle,  1  Green  Ch.  2(59  ;  Copper 

V  Wells,  Saxton,  10  ;  Reesi).  Smith,  1  Ohio,  124  ;  Gibbs  i\  Champion,  3  Ohio,  335  ; 
Jones  V.  Shackleford,  2  Bibb,  410  ;  Fisher  v.  Kay,  2  Bibb,  434  ;  Rankin  v.  Max- 
well, 2  A.  K.  Marsh,  488 ;  Slaughter  v.  Tindle,  1  Littell,  3r)8,  [S.  C,  13  Wall.  379.] 
Hopkins  v.  Gilman,  22  Wise.  476  ;  Hall  v.  D<'laplaine,  5  Wise.  206  ;  McQueen  v. 
Chouteau,  20  Mo.  222;  Tenney  i).  State  Bank,  20  Wise.  152;  O'Meara  v.  North 
Am.  Ins  Co.,  2  Nev.  112;  Carroll  v.  Wilson,  22  Ark.  32;  Harrison  v.  Deramus, 
33  Ala   463 ;  Stevenson  n.  Buxton,  37  Barb.  13;  Foley  v.  Crow,  37  Md.  51 ;  [Borden 

V  Curtis,  (N.  J  )  21  Atl.  Rep.  472 ;  Cunningham  v.  Duncan,  4  Wash.  St.  506  ; 
Tainter  v.  Cole,  120  Mass.  162,  165 ;  Combs  v.  Scott,  76  Wis.  662,  672.] 

(1)  Hamilton  ■«.  Hamilton,  59  Mo.  232  ;  Gupton  v.  Gupton,  47  Mo.  37.  47.  In  the 
first  of  these  cases  the  action  was  for  the  specific  enforcement  of  a  i)ai-ol  contract 
to  convey  land,  which  was  claimed  to  have  been  part  pei-formed.  The  jilaintifr, 
failing  in  his  case  for  equitable  relief,  was  allowed  to  recover  damages.  In  the 
second  case.  Buss,  J.,  after  examining  the  earliei-  New  York  decisions,  laid  down 
the  doctrine  as  follows  :  "The  docti-ine  of  these  cases  is  simply  this  :  when  the 
vendor  conveys  the  pi-operty  to  a  ihird  jiei-son  in  such  a  manner  that  the  land 
cannot  be  reached,  the  court  will  not  entertain  a  suit  in  equity  for  a  si)ecific  per- 
formance merely  for  the  purpose  of  compensating  the  purchaser  in  damages. 
Some  ground  for  equitable  interference  will  be  required ;  as  that  the  conti-act  is 
by  parol,  void  under  the  statute  of  frauds,  and  cannot  be  enfoi-ced  at  law  ;  or 
that  the  vendor  has  conveyed  away  all  his  property,  so  that  a  judgment  for  dam- 
ages merely  would  be  useless." 

553 


DAMAGES  GIVEN  IN  FLACE  OF  SPECIFIC  PERFORMANCE.        D41 

although  he  may  not  obtain  damages  for  the  defendant's  breach  of 
the  contract. (1) 

JSec.  479.  In  an  action  for  the  specific  performance  of  a  parol  con- 
tract, on  the  ground  of  a  part  performance,  a  court  of  equity  in  decree- 
ing this  remedy,  cannot  also  give  damages  for  an  independent 
cause  of  action  growing  out  of  the  agreement  void  by  the  statute 
of  frauds.  In  decreeing  the  specific  performance  of  a  verbal  contract 
which  has  been  partly  performed,  the  court  is  governed  by  the  same 
principles  as  upon  a  v;ritten  contract  valid  by  the  statute.  If  the 
vendor  is  not  able  to  fully  comply  with  his  agreement,  the  plaintiff 
will  be  allowed  to  obtain  a  partial  performance  to  the  extent  of  the 
seller's  ability,  and  to  have  compensation  by  way  of  abatement  out 
of  the  purchase-money  for  any  deficiency  in  the  title,  quantity,, 
or  other  matter  touching  the  estate.  But  the  court  will  not  go 
further,  and  give  the  plaintiff  damages  in  addition  for  a  breach  of  an 
independent  stipulation  of  the  agreement  upon  which  no  action  at 
law  could  be  sustained  under  the  statute  of  frauds. (2) 

Sec.  480.  One  further  question  remains  to  be  considered :  whether  the 
reformed  procedure  adopted  in  so  large  a  portion  of  the  states  has 
abrogated  or  modified  any  of  the  foregoing  rules  concerning  the  re- 
covery of  damages  in  the  action  for  a  specific  performance.  While 
that  procedure  does  not  purport  to  make  any  change  in  legal  and 
equitable  rights,  duties  and  remedies,  or  reliefs,  it  does  abolish  all 
distinctions  between  legal  and  equitable  actions,  and  provides  one 
civil  action  for  the  trial  of  all  controversies  in  which  legal  and  equi- 
table causes  of  action  and  defenses  may  be  united,  and  legal  and 
equitable  remedies  may  be  granted  by  a  single  judgment.  In  other 
words,  this  procedure  expressly  and  intentionally  removes  at  one  blow 
all  the  grounds  and  reasons  upon  which,  under  the  ancient  system, 
the  rule  was  based  which  forbids  the  award  of  damages  in  equity 
suits.  Independently  of  any  authority,  it  would  seem  to  be  perfectly 
clear  that  the  general  rules  which  had  been  established  as  a  part  of 

(1)  Green  v.  Drummond,  31  Md.  71  ;  Hilton  v.  Duncan,  1  Coldw.  313 ;  Rider  v. 
Gi-ay,  10  Md.  282  ;  King  v.  Thompson,  9  Peters,  204 ;  Evans  v.  Battle,  19  Ala. 
398 ;  Adey  v.  Echols,  IS  Ala.  333 ;  [Allen  v.  Young-,  8S  Ala.  338  j]  but  see,  per 
contra.  Horn  v  lAvAi\\n^\.on,  32  Wise.  73,  79. 

(2)  Harsha  v.  Reid,  45  N.  Y.  415.  A  verbal  contract  to  convey  land  and  a 
growing  crop  of  flax  upon  it,  was  part  performed  by  the  vendees  taking  pos- 
session and  payment.  In  his  suit  for  a  specific  performance  the  doctrine  of  the 
text  was  laid  down  by  the  court ;  the  contract  was  specifically  enforced,  but 
damages  were  refused  for  defendant's  breach  of  a  warranty  as  to  the  quality  of 
the  flax  which  he  had  given  as  a  part  of  the  entire  agreement. 

554 


542  SPECIFIC  PERFORMASCE   OF  CONTRACTS. 

the  former  procedure,  had  been  materially  modified  by  this  sweeping- 
reform.  The  question  thus  suggef^ted  has  been  directly  answered  by 
the  New  York  court  of  appeals.  An  action  was  brou^^lit  by  a  vendee 
praying  the  specitic  enforcement  of  a  contract.  Thnxigh  a  failure  of 
the  defendant's  title  a  specific  performance  was  impossible,  and  this 
inability  was  known  to  the  i)lainriti'  before  the  commencement  of  his 
suit.  The  com])laint  alleged  all  the  facts  necessary  to  show  a  cause 
of  action  for  damages,  as  well  as  for  a  specific  enforcement,  but  only 
demanded  the  latter  relief.  The  court  refused  the  si)ecific  perform- 
ance, but  held  the  plaintiti"  entitled  to  recover  danuiges  for  the  defend- 
ant's breach  of  the  contract.  Admitting  the  rule  to  have  been  settled, 
under  the  former  procedure,  that  where  a  jdaintif!'  was  aware  of  the 
inability  at  the  time  of  commencing  his  suit,  equity  would  not  retain 
the  case  and  give  damages,  the  court  declared  that  this  rule  had  been 
abrogated  by  the  Code,  and  it  laid  dow-n  the  general  doctrine  as  fol- 
lows :  If  a  complaint  states  facts  constituting  a  cause  of  action  for  a 
specific  performance,  and  also  one  for  damages  for  a  breach  of  the 
contract,  a  failure  of  the  first  will  not  prevent  his  recovery  on  the  sec- 
ond, whatever  may  have  been  the  prayer  for  relief.  (1) 

Sec.  481.  The  question  seems  to  have  been  differently  decided  in 
other  states.  In  Wisconsin  the  court  has  announced  a  doctrine  directly 
opposed  to  that  maintained  by  the  New  York  judges,  and  notwith- 
standing the  provisions  of  the  reform  legislation,  keeps  up  the  dis- 
tinctions between  legal  and  equitable  actions,  as  though  there  were 
two  courts  and  two  distinct  jurisdictions. (2)  Several  of  the  cases  cited 
under  the  preceding  paragraphs,  which  reaffirm  the  rules  as  settled  by 
the  equity  tribunals,  were  decided  by  the  courts  of  states  in  which 
the  new  procedure  had  been  adopted,  and  they  do  not  recognize  any 
change  as  having  been  made  in  those  rules. (3)  In  my  opinion  the 
conclusion  reached  by  the  New  York  court  is  in  complete  harmony 
with  the  intent  and  spirit  of  the  Codes  of  Procedure,  and  is  in  exact 
conformity  with  their  letter ;  but  as  I  have  in  another  work  examined 
this  subject  in  all  its  relations,  I  shall  attempt  no  discussion  of  it 
here. (4)  It  is,  however,  very  instructive  to  compare  the  readiness  and 
completeness  with  which  the  English  judges  accepted  the  modifica- 
tions made  by  Lord  Cairns'  Act,  and  carried  out  the  spirit  of  that 
legislation  in  their  decisions,  so  as  to  render  the  statute  practically 

(1)  Sternberger  v.  McGovern,  .56  N.  Y.  12,  20,  21. 

(2)  Horn  v.  Luddington,  32  Wisf.  73,  79. 

(3)  See  cases  cited  ante,  under  §§  474,  476. 

(4)  See  Pomeroy  on  Remedies  by  the  Civil  Action,  §^  76-85. 

555 


DAMAGES  GIVEN  IN  PLACE  OF  SPECIFIC  PERFORMANCE.        543 

remedial,  with  the  reluctance  and  unwillingness  shown  by  so  many 
of  the  American  courts  to  acknowledge  and  carry  into  operation  the 
essential  principles  of  the  Reformed  Procedure  concerning  the  amalga- 
mation of  legal  and  equitable  methods.  Lord  Cairns'  Act  simply 
makes  a  slight  moditication  in  one  of  the  rules  which  had  aided  in 
keeping  up  the  distinction  between  equitable  and  legal  actions  and 
recoveries  ;  the  American  legislation  goes  to  the  very  root  of  these  dis- 
tinctions, and  expressly  abrogates  them.  And  yet  we  have  this  most 
remarkable  result,  that  the  decisions  under  Lord  Cairns'  Act  have 
gone  further  in  permitting  the  legal  relief  of  damages  to  be  admin- 
istered in  equity  actions,  than  the  courts  of  many  of  the  American 
states  have  done  under  a  system  which  does  not  recognize  any  "  suits 
in  equity,"  or  any  "  actions  at  law,"  and  which  expressly  enacts  that 
equitable  and  legal  causes  of  action  and  defenses  may  be  united,  and 
equitable  and  legal  remedies  may  be  obtained  in  one  and  the  same 
judicial  proceeding  called  a  "civil  action." 
556 


544  SFECIFW  rERFORMASVE    OF  VUNTRACT3, 

CHAPTER  IV. 

PROCEDURE  IN   THE    SUIT   FOR   A   KPECIPIC   PERPORMAJJCB. 

SECTION  I. 

The  parties. 

Section  482.  It  is  not  my  purpose  to  describe  all  the  steps  in  the 
suit  for  a  specific  performance.  The  rules  which  relate  to  the  plead- 
ing, practice  and  evidence  are  the  same  which  regulate  all  equitable 
actions,  modified  simply  by  the  nature  of  the  subject-matter ;  and 
their  discussion  belongs  to  works  which  treat  of  equity  pleading  and 
practice  in  general.  Furthermore,  the  sytems  of  procedure  prevail- 
ing in  the  various  States  are  so  numerous  and  so  different,  that  a  dis- 
cussion of  these  subjects,  full  and  detailed  enough  to  be  of  any  prac- 
tical value,  would  far  transcend  the  limits  of  this  volume — would,  in 
fact,  require  a  volume  by  itself.  In  England  certain  steps  in  the  suit 
for  a  specific  performance  are  well  settled  by  the  equity  practice,  the 
preliminary  hearing,  the  reference  to  a  master,  the  examination  before 
the  master  concerning  the  title  and  other  incidents,  his  report,  and 
the  procedings  thereon,  and  the  final  hearing  ;  no  such  uniform  prac- 
tice prevails  in  this  country.  I  shall,  therefore,  confine  myself  to 
those  matters  which  are  special  and  peculiar  to  the  suit  for  a  specific 
performance,  and  which  distinguish  it  from  other  equitable  actions  ; 
and  the  most  important  of  these  matters  is  The  Parties. 

The  general  rule. 

Sec.  483.  The  general  doctrine  is  well  settled  in  England  that 
the  immediate  parties  to  the  contract,  or  the  persons  who  have 
become  substituted  in  their  place,  as  the  heirs,  executors,  admin- 
istrators, devisees,  and  under  some  circumstances,  assignees  or 
grantees  are  the  only  proper  parties,  plaintiff  or  defendant.  The  suit 
for  a  specific  enforcement  of  a  contract  cannot  be  combined  witli  a 
cause  of  action  for  relief  against  other  persons  claiming  an  intcrt^st 
in  the  same  subject-matter,  cannot  be  made  to  determine  the  titles  of 
other  claimants,  nor  to  foreclose  the  liens  of  prior  or  subsequent  iiiciiiii- 
brancers.  Third  persons,  therefore,  not  parties  to  the  contract,  ami 
claiming  or  holding  interests  or  equities  adverse  to  or  inconsistent  with 
those  of  the  vendor  or  of  the  vendee,  cannot,  acrording  to  this  rule, 
be  joined  as  co-plaintiffs  or  co-dcfVuilants,  even  tliough  their  consent 

557 


THE  PARTIES.  545 

arid  acts  may  perhaps  be  necessary  in  perfecting  the  vendor's  title 
aiid  in  completing  his  conveyance. (1)  This  rule,  restricting  the  proper 
parties  to  the  suit  to  the  original  parties  to  the  contract,  and  to  those 
who  have  succeeded  to  their  rights,  has  been  followed  by  some  of  the 
American  decisions. (2)  The  evident  tendency  of  the  American 
courts,  however,  is  towards  the  adoption  of  a  more  comprehensive  rule 
than  the  one  which  prevails  in  England ;  and  to  admit,  if  not  to  require 
as  parties  to  the  suit  many  classes  of  persons  who  are  not  parties  to 
the  contract,  nor  the  representatives  of  such  parties,  but  who  have 
acquired  an  interest  in  the  subject-matter  and  in  the  relief,  even 
though  it  be  hostile  to  that  of  the  vendee  and  of  the  vendor.  The 
general  doctrine,  as  supported  by  the  weight  of  American  authority, 

(1)  Tasker  v.  Small,  3  My.  &  Cr.  63,  69,  per  Lord  Cottenham  ;  Mole  v.  Smith, 
.Jac.  490,  494,  per  Lord  Eldon  ;  Wood  v.  White,  4  My.  &  Cr.  460,  470,  483  ;  Robert- 
son V.  Great  Western  Ry.  Co.,  10  Sim.  314  ;  Humphreys  v.  Hollis,  Jac.  73;  Pater- 
son  V.  Long,  5  Beav.  186  ;  Peacock  v.  Penson,  11  Beav.  355 ;  Dakingv.  Whimper, 
26  Beav.  568  ;  Petre  v.  Duncombe,  7  Hare,  24  ;  West  Midland  Ry.  Co.  v.  Nixon, 
1  H.  &  M.  176 ;  Cope  v.  Parry,  2  J.  &  W.  538 ;  De  Hoghton  v.  Money,  L.  R.  2  Ch, 
1(.'4. 170  ;  Bishop  ot  Winchester  v.  Mid  Hants  Ry.  Co.,  L.  R.  5  Eq.  17  ;  Aberaman 
I»oii  Co.  V.  Wickens,  L.  R.  4  Ch.  101,  111  ;  Fenwick  v.  Bulman,  L.  R.  9  Eq.  165; 
Chadwick  v.  Mader,  9  Hare,  188  ;  Spence  v.  Hogg,  1  Coll.  225 ;  Collett  v.  Hover, 
1  Coll.  227 ;  Cutts  -w.  Thodey,  13  Sim.   206  ;  Leuty  v.  Hillas,  2  De  G.  &  J.  110 ; 

Corber  v.  Morgan,  18  Ves.  344  ;  B v.  Walford,  4  Russ.  372.     As  illustrations 

of  this  rule  :  A  tenant  under  the  vendor  of  the  land  contracted  to  be  sold,  was 
held  not  a  necessary  nor  proper  party  in  a  suit  by  the  vendor,  in  Robertson  v. 
Great  Western  Ry.  Co.,  10  Sim.   314  ;  nor  is  a  sub-purchaser  from  the  vendee  a 

proper  party  in   a  suit   by  the  vendor.     Cutts  v.  Thodey,  1  Coll.  223  ;  B v. 

Walfoi'd,  4  Russ.  372.  Judgment-creditors  of  the  vendor,  whose  judgments  are 
specific  liens  on  the  land,  are  not  proper  parties.  Petre  v.  Duncombe,  7  Hare, 
24,  28.  In  an  action  by  the  vendor  a  person  who  held  an  interest  under  a  prior 
contract  with  the  vendor  was  declared  not  to  be  a  proper  party,  although  he  was 
interested  in  the  purchase-price.  Peacock  r.  Person,  11  Beav.  355 ;  but  in  West 
Midland  Ry.  Co.  v.  Nixon,  1  H.  &  M.  176,  a  person  claiming  an  interest  in  the 
jiurchase-price  by  virtue  of  a  prior  contract  with  the  vendor,  was  held  to  be  a 
proi>er  party  in  a  suit  by  the  vendee  against  the  vendor  ;  and  see  Chadwick  v. 
Maden,  9  Hare,  188 ;  ?i.nd  where  a  third  jierson  has,  after  the  making  of  the  con- 
tract, acquired  an  interest  in  the  subject-matter  imder  the  vendor,  but  with 
notice  of  the  vendee's  rights,  he  is  a  proper  co-defendant  wth  the  vendor  in  a 
suit  by  the  vendee.  Spence  v.  Hogg,  1  Coll.  225  ;  Collett  v.  Hover,  1  Coll.  227 ; 
Cutts  V.  Thodey,  13   Sim.   206  ;  Leuty  v.    Hillas,  2   De  G.   &  J.  110.     See,  also, 

Nelthorpe   v.  Holgate,  1  Coll.   203  ;  B v.  Walford,  4  Russ.   372,  where  the 

vendor  agrees  with  a  third  person  to  convey  to  him  the  land  purchased  fi-om  the 
vendor,  or  agrees  that  the  vendor  shall  convey  the  land  to  him,  such  third 
person  is  a  necessary  co-plaintiff  with  the  vendee  in  a  suit  against  the  vendor. 

(2)  Willard  -y.  Tayloe.  8  Wall.  557  ;  Morgan  v.  Morgan,  2  Wheat.  290  ;  Fagan  % 
Barnes,  14  Flor.  53,  57  ;  Knott  v.  Stephens,  3  Oreg.  269  ;  Bacot  v.  Wetmore,  2  C. 
E.  Green  (17  N.  J   Eq.)  250;  [Moulton  v.  Chafee.  22  Fed.   Rep.   26:    see,   also, 
Washburn,  etc.,  Manuf.  Co.  v.  Wire  Fence  Co.,  109  111.   71 ;  Ashley  v.  City  of 
iitUe  Rock,  (Ark.)  19  S.  W.  Rep.  1058.] 

558 


546  SFECIFIC   I'EL'FORMAXCK    OF  COST R ACTS. 

is  that  all  persons  who  are  interested  in  the  enforcement  of  the  con- 
tract mast  be,  and  all  those  directly  and  specilically  interested  in  the 
snbject-niatter  may  be  joined  as  parties  to  the  suit  for  u  specific 
performance. (1)  1  shall  proceed  to  illustrate  the  ^(Mieral  <h>ctriiie,  as 
it  has  been  ap[)liedin  particular  cases,  to  determine  who  are  and  wlio 
are  not  necessary  or  proper  parties  ;  and  shall  consider  separately  the 
cases  of  plaintiffs  and  defendants. 

The  parties  plaintiff.      I.  When  the  suit   is  on  behalf  of  the 

vendee. 

8ec.  484.  First.  If  a  tract  of  land  is  sold  in  separate  parcels  to  dif- 
ferent purchasers,  the  latter  cannot  unite  in  one  suit  for  a  specific  per- 
formance against  the  vendor,  since  each  sale  is  a  distinct  transaction; 
but  if  there  is  only  one  contract  of  sale  covering  the  land  in  question  to 
several  persons,  although  they  may  liave  stipulated  for  unequal  shares, 
then  the  purchasers  may  unite ;  and  it  is  not  necessary  that  they  should 
be  jointly  interested,  in  the  strict  sense  of  the  term ;  it  is  enough  if  they 
have  common  or  concurrent  interests  in  the  subject-matter  (2)  Where 
the  vendee  enters  into  a  contract  to  purchase  certain  land  from  the 
vendor,  and  had  previously  agreed  with  A.  to  sell  and  convey  the  land 
to  him  on  obtaining  a  deed  of  it,  the  vendee  and  A.  are  proper  co-plain- 
tiffs in  a  suit  against  the  vendor.  (3)  And  if  A.  agrees  to  purchase  from 
B.,  and  then  enters  into  a  contract  with  C.  that  B.  shall  convey  the  land 
to  C,  of  which  secoud  contract  B.  has  notice,  A.  and  C.  must  unite 

(1)  McCotter  v.  Lawrence,  6  T.  &  C.  392;  4  Hun,  107;  Curran  v.  Holyoke 
"Water  Co.  116  Mass.  90  ;  Seajrer  v.  Burns.  4  Minn.  141,  143  ;  Ag-ard  v.  Valencia, 
39  Cal.  292  ;  Hays  v.  Hall,  4  Port.  (Ala.)  874  ;  McMorris  v.  Crawford,  1.')  Ala.  271 ; 
Caldwell  v.  Taggert,  4  Pet.  190  ;  Began  v.  Camji,  30  Ala.  276 ;  Crosby  r,.  Davis, 
9  Iowa,  98;  Moi-ris  v.  Hoyt,  li  Mich.  9;  Stone  v.  Buckner,  12  Sm.  &  Mar  73; 
White  V.  Walkins,  23  Mo.  423 ;  Anshutz's  Appeal.  34  Pa.  St.  375  ;  Allison  v. 
Shelling-,  27  Tex.  450  ;  [Heavner  v.  Morgan  (\V  Va.),  4  S.  E.  Rop.  406  ;  Towle  v. 
Carmelo  Land  &  Coal  Co  99  Cal.  397  ;  Horton  v.  Hubbard,  83  Mich.  123  (attach- 
ment or  execution  creditor  of  the  vendor  is  a  projier  party) ;  Kellogg  tt.  Lavender, 
9  Nev.  418.]  Thus,  in  McCotter  t).  Lawi-ence  {supra),  it  was  said  that  all  per- 
sons interested  in  the  subject-matter  as  holders  of  the  legal  or  equitable  titles 
to  the  land,  are  necessary  parties,  and  in  Seager  v  Burns  {supra),  judgment- 
creditors  of  the  vendors,  whose  judgments  had  been  recovered  subseciuent  to  the 
contract,  were  held  to  be  proper  defendants  in  a  suit  by  the  vendee  for  the«pur- 
jiose  of  cutting  off  their  liens  ;  while  in  Agard  v.  Valencia  {supra),  whei-e  the  land 
contracted  to  be  sold  was  an  undivided  share  of  a  ti-act,  it  was  held  that  all  per- 
sons subject  to  the  vendee's  eciuitics  and  holding  adver.sely  to  him,  must  bt;  made 
parties  defendant.  [The  above  passage  of  the  text  was  appi-oved  in  Washburn 
&  Moen  Co.  v.  Chicago  Fence  Co.  109  111.  71.  A  licensee  un<lor  letters-patent 
brought  a  bill  to  enforce  a  contract  for  paying  royalties  in  a  specified  manner, 
;,,nd  the  court  decided  that  a  person  having  an  interest  in  the  patent,  but  not  a 
party  to  the  contract  and  having  no  interest  in  the  royalty,  was  not  a  necessary 
party.  Handy  v.  Wilson,  75  Ga.  841,  holds  that  an  indorsee  of  a  note  for  the 
price  of  land,  who  holds  in  escrow  the  deed  of  such  land,  as  secui-ity,  should  not 
be  a  pai'ty.  Carleton  v.  Wright,  73  Ga.  8,  holds  that  cre<litors  who  claim  an 
interest  in  the  proceeds  of  a  sherifTs  sale  should  not  be  parties  in  a  suit  against  a 
bidder  who  fails  to  comply  wiih  his  bid.] 

(2)  Owen  v.  Frink,  24  Cal.  171,  177  ;  and  .see  Paterson  v.  Long,  5  Bcav.  186. .  In 
Wood  v.  Perry,  1  Barb.  114,  several  ])crsons  in  possession  of  distinct  parcels  of 
a  tract  as  purchasers,  united  as  i)laintifls  to  enforce  a  contract  by  which  the 
vendor  had  agreed  to  con\-ey  the  whole  tract  to  A.,  and  which  contract  A.  had 
assigned  to  one  of  the  plaintiffs  for  the  benefit  of  all ;  held,  that  the  plaintiffs 
<;ould  not  thus  unite  and  maintain  the  action. 

(3)  Nelthorpe  v.  Holgate,  1  Coll.  203. 

559 


THE   PARTIES.  547 

as  co-plaintiffs  in  the  suit  on  the  first  contract  against  B.(l)  When  a 
purchase  is  made  by  A.  in  his  own  name,  but  it  is  in  fact  a  joint  pur- 
chase by  A.  and  B.,  B.  can  sue  A.  to  compel  a  conveyance  of  his  own 
share,  although  the  agreement  to  make  the  purchase  jointly  was  ver- 
bal.(2)  A  county,  to  which  land  had  been  dedicated  on  certain  condi- 
tions, may  sue  to  compel  a  specific  performance  of  the  dedication. (8) 
A  tenant  for  life  and  contingent  remainderman  may  unite  as  co-plain- 
tiffs. (4) 

Sec.  485.  Generally  all  persons  claiming  under  the  original  parties, 
when  there  are  no  intervening  equities  to  hiiuler,  may  be  parties  to 
the  suit. (5)  But  a  person  who  was  not  a  party  to  the  contract,  nor 
privy  to  it,  nor  one  for  whose  benefit  it  was  made,  cannot,  in  general, 
sue  to  compel  its  enforcement. (6)  A  vendee  who  has  assigned  all 
his  interest  in  the  contract,  need  not  be  joined  as  a  co-plaintiff  in  a 
suit  by  the  assigned. (7)  General  creditors  of  the  vendee  or  of  the  vendor 
before  judgment  obtained,  cannot  sue  to  enforce  the  contract,  and  are 
not  proper  parties.(8)  Where  a  contract  has  been  made  by  a  trustee  for 
the  benefit  of  another  person,  and  this  beneficiary  sues  for  a  specific  per- 
formance, the  trustee  must  also  be  joined  as  a  party. (9)  But  in  suits, 
either  by  or  against  trustees,  the  cestuis  que  trnsLent  are  not,  in  general, 
either  necessary  or  proper  parties.(lO)  And  in  a  suit  by  a  cestui  que  trad 
against  the  trustee  to  compel  a  conveyance  to  another  person,  to  secure 
whose  claim  against  the  cestui  que  trust  the  title  was  held  by  the 
trustee,  was  declared  not  to  be  a  necessary  plaintiff'  nor  defendant.(ll) 

Person  for  ■whose  benefit  the  contract  is  made. 

Sec.  486.  The  doctrine  is  w^ell  settled  in  England  that  a  stranger  to 
the  contract,  although  he  takes  a  benefit  under  it,  cannot  in  general  sue 
upon  it.(12)    To  this  doctrine  there  are  two  exceptions.    The  first  is  the 

(1)  B V.  Walford,  4  Russ.  372.     [See,  also,  Hurst  v.  Thompson,  73  Ala.  158. 

So,  where  B.  enters  into  a  contract  to  purchase  land  of  A.,  and  C.  pays  the  con- 
sideration money,  it  being-  agreed  between  the  parties,  that  when  A.  conveyed  to 
B..  C  should  receive  a  mortgage  on  the  property  for  the  money  advanced,  it  was 
held  that  C.  was  a  necessary  party  ;  Appeal  of  Alexander  (Pa  ),  11  Atl.  Rep  83.] 
But  a  sub-purchaser  from  the  vendee  is  not  in  England  a  proper  co-plaintiff  in 
the  vendee's  suit,  ibid.;  Cutts  v.  Thodey,  1  Coll.  223  ;  [see,  also,  Pennsylvania  & 
N.  E.  R.  Co.  V.  Ryerson,  86  N.  J.  Eq.  112]. 

(2)  Levey  v  Brush,  8  Abb.  Pr.  (N.  S.)  418. 

(3)  Reese  v.  Lee  Co.,  49  Miss.  639. 

(4)  Sohier  v.  Williams,  1  Curtis,  479. 

(o)  Hays  v.  Hall,  4  Port.  (Ala.)  374;  McMorriss  v.  Crawford,  15  Ala.  271. 

(6)  Beardsley  Scythe  Co.  v.  Foster,  36  N.  Y.  561. 

(7)  Miller  v.  Whittier,  32  Me.  203  ;  Colerick  v.  Hooper,  3  Ind.  316 ;  Currier  v. 
Howard,  14  Gijay,  571. 

(8)  Griffith  v   Frederich  Go.  Bank,  6  Gill  &  J.  424. 

(9)  Cope  V  Parry,  2  J.  &  W.  538. 

(10)  Story's  Eq.  PI.  §  209,  and  cases  cited  in  8th  e(L 

(11)  Smith  V  Sheldon,  65  III.  219  ;  44  111.  65. 

(12)  Moss  V.  Bainbrigge,  18  Beav.  478 ;  6  De  G.  M.  &  G.  292 ;  Colyear  v. 
Countess  of  Mulg-rave,  2  Keen,  98  ;  Hill  v.  Gomme,  5  My.  &  Cr.  250,  256 ;  Crow 
«.  Rogers,  1  Str.  592 ;  Ex  parte  Peele,  6  Ves.  602. 

.     560 


548  SPECIFIC   PRRPORMANCE    OF  CONTRACTS. 

case  of  issue  and  collateral  relatives  who  are  benefited  by  marriage 
settlements,  and  who  are  entitled  to  compel  their  .specilic  performance, 
although  not  parties  to  the  contract. (1)  The  second  exception  includes 
cases  where  the  nearness  of  relationshi})  ofia,  party  to  the  contract  with 
the  person  to  be  benefited  by  it  gives  to  the  latter  a  right  to  sue  on  the 
contract;  as  where  a  promise  is  made  to  a  father  to 'pay  money  or  to 
convey  land  to  his  child,  the  child  can  sue  either  at  law  or  in  equity  on 
the  agreement.(2)  The  rule,  as  thus  settled  in  Enigland,  cannot  be  said 
to  prevail  in  many  of  the  American  states.  It  has  been  laid  down  in 
general  terms  that  the  j)erson  for  whose  benefit  a  contract  is  made, 
although  not  a  party  to  the  agreement,  may  sue  in  his  own  name  to 
enforce  a  specific  performance. (8)  It  is  now  the  settled  doctrine  in  so 
many  of  the  states,  that  it  may  properly  be  called  the  American  <l(ic- 
trine,  that  where  a  promise  is  made  by  A.  to  B.,  upon  a  consideration 
moving  from  B.,  w^hereby  the  promissor  engages  to  do  something  for 
the  benefit  of  C,  although  C.  is  both  a  stranger  to  the  consideration 
and  not  an  immediate  party  to  the  contract,  yet  he  may  maintain  an 
action  upon  the  contract,  in  his  own  name,  against  the  promissor. 
Many  of  the  cases  in  which  this  rule  has  been  applied  were  legal 
actions,  but  there  is  no  reason  why  the  rule  should  not  be  extended 
to  the  equitable  action  for  a  specific  performance,  especially  in  those 
states  which  have  abolished  the  distinction  between  legal  and  equi- 
table proceedings.  (4) 

(1)  The  rule  is  familiar  with  respect  to  the  issue,  Hill  v.  Gomme,  5  My.  &  Cr. 
254,  per  Lord  Coltenhan;  and  is  now  settled  with  regard  to  collaterals.  Goring  v. 
Nash,  3  Atk.  186  ;  Davenport  v.  Bishop,  1  Y.  &  C.  Ch.  451  ;  1  Phil.  698;  Edwards 
V.  Countess  of  Warwick,  2  P.  Wins.  171  ;  Vernon  v.  Vernon,  2  P.  Wnia.  594  ;  1 
Bro.  P.  C.  267  ;  Stephens  v.  Trueman.  1  Ves.  Sen.  73  ;  Pulvertoft  v.  Pulvertoft,  18 
Ves.  84,  92 ;  Campbell  ?\  Ingilby,  21  Beav.  567. 

(2)  The  Physician's  Case,  cited  in  1  Ventr.  6  ;  Button  t\  Pool,  1  Ventr.  318,  332. 

(3)  Van  Dyne  v.  Vreeland,  3  Stockt.  Ecj.  370.  Where  a  father  entered  into  a 
contract  for  the  purchase  of  land  for  the  benefit  of  his  infant  child — that  is,  the 
conveyance  was  to  be  made  to  the  chiUl — the  child  was  held  entitled  to  sue  in  his 
own  name  foi-  an  enforcement  of  the  contract. 

(4)  Kimball  v.  Noyes,  17  Wise.  695  ;  McDowell  v.  Law,  35  Wise.  171 ;  Sanders 
V.  Clason,  13  Minn.  379 ;  Jordan  v.  White,  20  Minn.  91  ;  Myer  v.  Lowell,  44  Mo. 
328  ;  Rogers  v.  Gosnell,  58  Mo.  589,  590  ;  51  Mo.  466 ;  Cross  v.  Truesdale,  28  Iiul. 
44;  Devol  v.  Mcintosh,  23  Ind.  529;  Day  v.  Patterson,  18  Ind.  114;  Rice  ?\ 
Savery,  22  Iowa,  470;  Scott  v.  Gill,  19  Iowa,  187;  Johnson  v.  Knapj).  36  Iowa, 
616 ;  Allen  v.  Thomas,  3  Mete.  (Ky.)  198;  Wiggins  v.  McDonald.  IS  Cal.  126  ; 
Miller -?).  Florer,  15  Ohio  St.  148  ;  Coster  v.  Mayor,  etc.,  43  N.  Y.  399.  411;  Van 
Schaick-y.  Third  Av.  R.  R.,  38  N.  Y.  346;  Rieard  v.  Sanderson,  41  N.  V.  179; 
Barker  v.  Bradley,  42  N.  Y.  316,  319  ;  Record  v.  Lord.  3  Keves,  ii25  ;  Clatlin  v 
Ostrom,  54  N.  Y.  581,  584  ;  Cooley  v.  Howe  Machine  Co.,  63  N.  Y.  620  ;  Glen  v\ 

561 


THE   PARTIES.  549 

Wliere  the  vendee  has  assigned  the  contract. 

Sec.  487.  Unless  the  contract  is  one  which  calls  for  personal  services, 
or  is  one  which  in  any  manner  depends  upon  the  learning,  skill,  sol- 
vency, or  other  personal  quality  of  the  party  or  is  fiduciary  in  its  nature, 
it  may  be  assigned  by  the  vendee  or  party  who  stands  in  the  position 
analogous  to  that  of  the  vendee.  This  class  of  assignable  agreements 
includes  all  ordinary  contracts  for  the  sale  or  leasing  of  land  or  per- 
sonal property.  The  assignee  may  then  sue  in  his  own  name  to  compel 
a  specific  performance  of  the  contract.(l)  In  England  the  assignor  is 
also  joined  as  a  party  plaintiff  or  defendant  ;(2)  this  rule  is  followed 
in  some  of  the  American  cases,  and  it  is  certainly  proper  to  add  the 
assignor  as  a  party,  so  that  all  questions  as  to  the  validity  of  the 
assignment  may  be  conclusively  settled  ;(3)  but  in  other  American 
decisions  it  is  held  that  the  assignor  is  not  a  necessary  party  when  the 
assignment  is  complete  and  absolute. (4)  The  purchaser  of  the  vendee's 
interest  at  a  judicial  sale  on  a  decree  against  the  vendee  may  sue  in 
his  own  name,  and  this  principle  would  include  the  assignee  in  bank- 
ruptcy or  insolvency,  if  the  contract  is  itself  assignable. (5)  While  the 
assignee  of  the  vendee  may  thus  sue  the  vendor  to  enforce  a  specific 
performance,  the  vendor  cannot,  upon  a  mere  assignment,  maintain  a 
suit  against  the  assignee  ;  his  remedy  is  against  the  original  vendee 
alone,  unless  in  the  change  of  parties  the  whole  transaction  amounts 
to  a  novation. (6)  In  the  foregoing  rules  it  is  assumed  that  the  vendee's 
entire  interest  has  been  assigned ;  when  the  assignment  is  only  of  a 

Hope  Life  Ins.  Co.,  56  N.  Y.  379,  381  ;  Barlow  v.  Meyei-s,  6  T.  &  C.  183; 
64  N.  Y.  41 ;  Arnold  v.  Nichols,  64  N.  Y.  117  ;  Lawrence  v.  Fox,  20  N.  Y.  268 ; 
Burr  V.  Beers,  24  N.  Y.  178  ;  Thorp  v.  Keokuk  Coal  Co.,  4S  N.  Y.  253  ;  Garnsey 
V.  Rogers,  47  N.  Y.  233,  240  ;  Merrill  v.  Green,  55  N.  Y.  270,  273  ;  Turk  v.  Ridge, 
41  N.  Y.  iiOl,  20t3;  Phillips  v.  Van  Schaick,  37  Iowa,  229.  [See,  also,  Pruden  v. 
Williams,  26  N.  J.  Eq.  210 ;  Cubberly  v.  Cubberly,  33  N.  J.  Eq.  591 ;  Crowell  v. 
Currier,  27  N.  J.  Eq.  152 ;  WimbisVi  v.  Building  Ass'n,  69  Ala.  575.] 

(1)  Duke  V.  Mayor  of  Exon,  2  Freem.  183 ;  Vandenanker  v.  Desbrough,  2 
Vern.  96  ;  Moyses  v.  Little,  2  Vern.  194;  Crosbie  t).  Tooke,  1  My.  &  K.  431  ;  Mor- 
gan V.  Rhodes,  1  My.  &  K.  435  ;  Fellowes  v.  Lord  Gwydyr,  1  R.  &  My.  83 ; 
Maughlin  v.  Perry,  35  Md.  352 ;  Owen  v.  Frink,  24  Cal.  171 ;  Corbus  v.  Teed,  69 
111.  205  ;  Perkins  x.  Hadsell,  50  111.  216  ;  Fitzhugh  v.  Smith,  62  111.  486  ;  Evans  v. 
Gordon,  69  N.  H.  444  ;  House  t).  Dexter,  9  Mich.  246  ;  Gaston  v.  Plum,  14  Conn.  344. 

(2)  See  English  cases  in  last  note. 

(3)  Allison  V.  Schelling,  27  Tex.  450. 

(4)  Currier  v.  Howard,  14  Gray  571  ;  Miller  v.  Whittier,  32  Me.  203  ;  Colerick 
•a.  Hooper,  3  Ind.  316. 

(5)  Fitzhugh  V.  Smith,  62  111.  486.  In  Bogan  v.  Camp,  30  Ala.  276,  it  was  held 
that  where  a  distributee  assigns  his  interest  in  the  undivided  assets  of  an  estate 
in  the  hands  of  the  administrator,  and  the  assignee  sues  to  compel  a  specific  per- 
formance,  all  the  distributees  are  necessary  parties  defendant. 

(6)  Corbus  V.  Teed,  69  lU.  205. 

562 


550  SPECIFIC  PERFORMANCE    OF  CONTRACTS. 

partial  interest  in  the  contract,  the  suit  must  be  hj  the  vendee,  and 
the  assignee  is  not  a  necessary  ])arty.(l) 

Where  the  vendee  has  died. 

tSEC.  4!S8.  Wliou  tlio  vciiilt'c  dies  before  completion,  unless  the  con- 
tract is  strictly  personal  in  its  nature,  so  tliat  the  obligation  is  en<led 
by  the  death,  the  suit  for  a  specific  perforniance  must  be  brought  by 
his  heirs  if  he  dies  intestate,  or  by  his  devisee  if  his  interest  under 
the  contract  has  been  devised.  This  follows  as  a  necessary  consequence 
of  the  doctrine  that  an  equitable  estate  in  the  land  vests  in  the  vendee, 
which  passes  by  descent  or  devise,  and  the  heirs  or  devisee,  and  not  the 
personal  representatives,  are  entitled  to  the  conveyance.  (2)  Whether 
the  administrator  or  executor  of  the  deceased  vendee  must  be  joined 
as  a  party,  will  depend  upon  circumstances.  If  the  purchase-money 
has  been  fully  paid  before  the  vendee's  death,  his  personal  represen- 
tatives have  no  real  interest  in  the  suit,  and  need  not  be  joined  ;(3) 
but  if  the  purchase-price  has  not  been  paid,  and  the  personal  estate 
of  the  deceased  vendee  is  liable  for  its  payment,  it  would  seem  that 
his  executors  or  administrators  are  necessary  parties  with  the  heirs  or 
devisees,  as  defendants  if  not  as  co-plaintiffs,  for  in  such  case  they  as 
representatives  of  the  vendee  are  the  debtors,  and  the  decree  must, 
of  course,  order  a  payment  as  a  condition  precedent  to  a  conveyance 
being  made  to  the  heir  or  devisee.(4)  If  the  suit  is  not  brought  for  a 
specific  performance,  but  for  damages,  then  the  personal  represen- 
tatives of  the  deceased  vendee  should  be  the  plaintiffs. (5) 

2  McCarter,  93 ;  Lord  v.  Underdunk,  1  Sandf.  Ch.  40  ;  [Neville  v.  Rentzell,  39 
Ark.  289;  Boburg- ij.  Prahl,  (Wyo.)  23  Pac.  Rep.  70;  Watson  v.  White,  (111.)  38 
N.  E.  Rep.  902  (Oct.  29,  1894.)]  In  Housa  v.  Dexter  {supra),  it  wa-;  held  that 
where  the  vendee  had  assig-ned,  and  the  assignee  died,  his  heirs  and  not  his  ad- 
ministrator should  sue.     See  Story's  Eq.  PI.  §§  160-163,  177. 

(3)  See  cases  in  last  note ;  [also,  McKay  v.  Broad,  70  Ala.  377.]  In  Speir  v. 
Robinson  {supra),  which  was  a  suit  by  a  devisee  of  the  vendee,  it  wa.s  held  that 
the  heii'S  of  the  vendee  should  not  join  as  co-plaintiffs,  nor  as  co-defendants,  unless 
the  will  was  disputed,  and  that  the  vendee's  executors,  or  administrators  should 
not  be  united  with  the  devisee  as  plaintiffs.  In  Lord  v.  Underdunk  (suirra),  the 
vendee  had  paid  in  fidl  and  then  died,  and  his  heirs  had  conveyed  to  the  plaintiffs 
who  sued  the  vendor ;  the  vendee's  heirs  were  held  necessary  jiarties. 

(4)  See  cases  in  last  note  but  one ;  Downing  ii.  Risley,  2  McCarter,  93. 

(5)  Webster -».  Tibbetts,  19  Wise.  438;  Peters  v.  Jones,  25  Iowa,  512,  518.  In 
those  states  where  the  widow  of  the  vendee  is  entitled  to  dower  in  the  vendee's 
equitable  estate  acquired  under  the  contract,  so  that  she  would  be  entitled  to 
dower  in  the  land  when  the  legal  title  thereto  was  conveyed  to  the  heire,  it  would 
seem  that  she  is  a  necessary  party  to  the  suit  brought  by  the  vendee's  heii-s. 

563 


THE  PARTIES.  551 

"Where  the  suit  is  on  behalf  of  the  vendor. 

Sec.  489.  11.  In  all  ordinary  cases,  it  is  plain  that  the  vendor  is 
the  only  necessary,  or  even  proper  party  plaintiff  In  those  states 
"where  a  wife  is  only  entitled  to  dower  in  lands  of  which  her  husband 
is  seized  at  the  time  of  his  death,  so  that  her  dower  right  is  cut  off 
by  his  conveyance,  it  would  seem  that  the  wife  of  the  vendor  should 
be  joined  as  a  party,  so  that  she  may  be  bound  by  the  decree  order- 
ing a  conveyance  to  be  made  by  her  husband.  But  in  those  states 
where  the  common-law  doctrine  as  to  dower  prevails,  so  that  her 
right  is  not  aflfected  by  her  husband's  conveyance,  there  seems  to  be 
no  necessity  for  the  wife  of  the  vendor  to  be  joined — unless  she  is  an 
actual  party  to  the  contract — since  her  interest  could  not  be  affected 
by  the  decree.  Where  the  vendor  has  before  completion  conveyed 
the  land  subject  to  the  contract,  and  the  grantee  thereof  sues  for  a 
specific  performance,  it  would  seem,  on  the  general  principles  of 
equity  procedure,  that  the  vendor  himself  should  be  joined  as  a  party 
to  the  suit.(l)  Where  land  has  been  sold  at  public  sale  by  order  of  a 
court,  and  the  purchaser  refuses  to  complete,  the  officer  making  the 
sale  is  the  only  necessary  party  plaintiff  in  the  suit  for  a  specific  per- 
formance, although  it  seems  that  the  person  interested  in  the  subject- 
matter  may  join  in  the  suit.(2)  Where  a  husband  and  wife  had  jointly 
agreed  to  convey,  and  had  executed  a  deed,  and  deposited  in  the 
hands  of  a  third  person  to  be  delivered  to  the  vendee  on  his  payment 
of  the  price,  it  was  held  that  they  might  unite  as  plaintiffs  in  a  suit 
against  the  vendee  to  compel  a  performance  by  him. (3) 

Where  the  vendor  has  died. 

Sec.  490.  On  the  death  of  the  vendor  before  completion,  the  suit  for 
a  specific  performance  must  be  brought  by  his  executors  or  adminis- 
trators as  the  necessary  plaintiffs,  since  by  the  doctrine  of  equitable 
conversion  the  vendor's  interest  under  the  contract  is  regarded  aa 
personalty,  and  they  are  entitled  to  receive  the  purchase-money ;  but 
the  vendor's  heirs,  or  devisees,  in  case  he  has  devised  the  land  in 
question,  must  also  be  joined  as  parties,  since  the  legal,  title  is  vested 
in  them  and  they  must  make  the  conveyance,  and  they  cannot  be 
bound  by  the  decree  unless  parties  to  the  suit. (4) 

(1)  See  Daily  -u.  Litchfield,  10  Mich.  29. 

(2)  Brown  v.  Ritter,  26  N.  J.  Eq.  456. 

(3)  Farley  v.  Palmer,  20  Ohio  St.  223. 

(4)  Baden  v.  Countess  of  Pembroke,  2  Vern.  212  ;  Roberts  v.  Marchant,  1  Hare, 
547;  1  Phil.  370;  Galton  v.  Emuss,  1  Coll.  243;  Mitchell  v.  Shell,  49  Miss.  118; 
Thompson  v.  Smith,  63  N.  Y.  301 ;  McCarty  v.  Meyers,  5  Hun,  83 ;  [Hubbard  v. 
Johnson,  77  Me.  139;  Leeper  v.  Lyon,  68  Mo.  216  (not  enough  that  the  vendor's 
administrator  tenders  a  deed  signed  by  the  heirs ;  they  should  be  made  parties) ; 
Coles  V.  Feeney,  (N.  J.  Ch.)  29  Atl.  Rep.  172  (devisees  necessary) ;]  Story's  Eq. 
Plead.  §§  160,  163,  177.  In  Texas  the  heirs  of  the  vendor  need  not  be  made  i^ar- 
ties  in  a  suit  by  his  administrator ;  they  are  bound  by  the  decree.  Shannon  v. 
Taylor,  16  Tex.  413. 

564 


552  SPECIFIC  PEKFORMANCE   OF  CONTRACTS. 

The  parties  defendant.     I.  Where  the  suit  is  against  the  vendor. 

k5EC.  491.  iSecond.  The  ii'eueiiil  rule  has  already  been  stated,  that 
under  ordinary  circumstances  the  vendor  himself  is  the  only  necessary 
or  even  proper  defendant.  I  shall  give  some  instances  in  which  tliis 
general  rule  has  been  followed,  departed  from  or  modified,  and  shall 
then  examine  the  two  important  cases  where  the  vendor  has  assi^nied, 
and  where  he  has  died.  The  wife  of  the  vendor  who  has  not  joined 
in  the  contract  cannot  be  made  a  defendant. (1)  It  is  held  in  Cali- 
fornia that  all  persons  subject  to  the  vendee's  equities  and  holding 
adversely  to  him  must  be  joined  as  defendants  ;(2)  and  in  Minnesota, 
that  judgment-creditors  of  the  vendor,  whose  judgments  were 
recovered  subsequent  to  the  contract,  may  properly  be  joined  as 
defendants.(3)  Under  the  doctrine  as  generally  accepted,  however, 
incumbrancers  on  the  land,  whether  prior  or  subsequent  to  the  contract, 
and  whether  mortgagees  or  judgment-creditors,  are  not  proper  defend- 
ants in  a  suit  against  the  vendor.(4)  And  when  in  the  contract  of  sale 
the  vendor  had  named  an  agent  to  execute  and  deliver  a  deed  in  the 
vendor's  name,  and  had  directed  this  agent  to  perform,  which  he  had 
neglected  to  do,  a  suit  against  the  vender  and  the  agent  as  co-defend- 
ants was  held  as  improperly  brought,  since  the  agent  had  no  interest, 
and  w^as  not  a  proper  party  in  any  aspect  of  the  case. (5)  Land  had  been 
sold  at  execution  sale,  and  afterwards  redeemed  in  alleged  pursuance 
of  the  statute ;  the  purchaser  denying  the  validity  of  the  redemption, 
brought  an  action  against  the  sheriff  alone  to  compel  the  execution 
and  delivery  of  a  deed  ;  it  was  held  that  the  person  claiming  the  land 
under  the  redemption  was  a  necessary  party  defenda!it.(()) 

Sec.  492.  In  general,  "when  the  vendor  is  a  trustee,  his  cesluis  qve 
trustent  need  not  be  joined  as  co-defendants.  In  a  suit  by  a  cestui  qvA 
trust  against  the  trustee  to  compel  a  conveyance,  another  person,  to 
secure  whose  claim  against  the  plaintiff  the  title  was  taken  and  held 
by  the  trustee,  is  not  a  necessary  defendant.(7)  In  a  suit  to  enforce 
a  contract  made  under  a  deed  of  trust  to  sell  the  land,  the  grantor  in 
the  deed  is  a  necessary  defendant  ;(8)  and  in  a  suit  against  a  corpora- 

(1)  Ricbmond  v.  Robinson,  12  Mich.  193 

(2)  Agard  v.  Valencia,  39  Cal.  292. 

(3)  Seager  v.  Burns,  4  Minn.  141,  145, 

(4)  Chapman  v.  West,  17  N.  Y.  125 ;  Secombe  r.  Steele,  20  How.  94. 

(5)  Dahoney  v.  Hall,  20  Ind.  264  ;  and  see  Roby  v.  Cossitt,  78  111.  638. 

(6)  Crosby  v.  Davis,  9  Iowa,  98. 

(7)  Smith  V.  Sheldon.  65  111.  219  ;  44  111.  68.  As  to  the  neces.sity  of  uniting  the 
cestuis  qwe  trustent,  see  Story's  Eq.  PI.  $  209. 

(8)  White  V.  Watkins,  23  Mo.  423. 

565 


THE  PA  RTIES.  553 

tion  as  vendor,  a  trustee  holding  the  legal  title  to  the  corporation 
lands  must  be  joined  as  a  defendant. (1)  A  number  of  other  particular 
instances  are  collected  in  the  foot-note. (2) 

Where  the  vendor  has  assigned. 

8ec.  493.  All  persons  having  or  claiming  an  interest  in  the  land 
derived  from  the  vendor  after  the  contract  and  with  notice  thereof, 
are  necessary  defendants  in  a  suit  brought  by  the  vendee  or  his  repre- 
sentatives.(3)  If  the  vendor,  subsequent  to  the  contract,  conveys  or 
contracts  to  convey  the  subject-matter  to  a  person  who  has  notice  of 
the  original  contract,  such  grantee  or  second  vendee  is  bound,  as  has 
been  already  shown,  to  perform,  and  is  of  course,  a  necessary  party 
defendant.  (4) 

Where  the  vendor  died. 

Sec.  494.  If  the  vendor  dies  before  the  completion,  the  suit  must 
be  brought  against  his  heirs,  or  against  his  devisees,  if  the  land  in 

(1)  Morrow  r'.  Lawrence,  7  Wise.  574. 

(2)  Where  the  vendee's  rights  came  by  divers  assignments  to  the  plaintiff,  all 
the  persons  through  whom  he  tlius  derived  title  were  held  to  be  necessary  defend- 
ants. Allison  V.  Shilling,  27  Tex.  450 ;  per  contra,  the  vendee  need  not  be  joined 
in  a  suit  by  his  assignee.  Carrier  v.  Howard,  14  Gray,  511.  In  a  suit  to  compel 
the  execution  of  secui'ities  on  certain  lands,  contracted  to  be  given  to  secure  a 
loan,  prior  mortgagees  of  the  same  land  are  necessary  defendants.  Caldwell  v. 
Taggert,  4  Pet.  190.  Where  the  vendee  had  died  and  his  heirs  conveyed  their 
interest  to  the  plaintiffs  who  sue  the  vendor,  the  heirs  were  held  necessary  parties. 
Lord  V.  Underdunk,  1  Sandf.  Ch.  4ii.  [A  jierson  to  whom  part  of  the  jiui-chase- 
money  notes  were  by  direction  of  the  vendor  made  payable  is  a  proper  party. 
Gentry  u  Gentry  (Va.),  12  S.  E.  Rep.  966. 

(3)  Morris  v.  Iloyt,  11  Mich.  9  ;  Seager  v.  Burns,  4  Minn.  141  ;  Stone  v.  Buckner, 
12  Sm.  &  Mar.  73. 

(4)  Saunders  v.  Cramer,  3  Dr.  &  W.  99  ;  Taylor  v.  Stibbert,  2  Ves.  437 ;  Howard 
1).  Hopkins,  2  Atk.  371  ;  Brooke  v.  Hewitt,  3  Ves.  253  ;  KnoUeys  v.  Alcock,  5  Ves. 
648 ;  Spence  v.  Hogg,  1  Coll.  225  ;  Dowell  v.  Dew,  1  You.  &  C.  Ch.  345  ;  Crofton 
V.  Ormsby,  2  Sch.  &  Let'.  583  ;  Potter  v.  Saunders,  6  Hare,  1  ;  Hersey  v.  Giblett, 
18  Beav.  174  ;  Shaw  v.  Thackeray,  1  Sm.  &  G.  537  ;  Goodwin  v.  Fielding,  4  De  G. 
M.  &  G.  90  ;  Fullerton  v.  McCurdy,  4  Lans.  132 ;  Daily  v.  Litchfield,  10  Mich.  29  ; 
Stone  V.  Buckner,  12  Sm.  &  Mar.  73 ;  Bryant  7).  Booze,  55  Geo.  438  ;  Hildreth  v. 
Shelton,  46  Cal.  382  ;  [Whitehorn  i).  Cranz,  20  Neb.  392  ;  Maguire  v.  Heratz  (Pa.), 
30  Atl.  Rep),  151  (Oct.  1,  1894);  cf.  Burrill  v.  Garst  (R.  I.),  31  Atl.  Rep.  436 
(March  21,  1895)] ;  and  see  cases  cited  {ante)  under  §§  463-467.  An  assignee  in 
bankj'uptcy  of  a  vendor  who  had  not  received  the  entire  purchase-money  is  a 
necessai-y  co-defendant,  since  he  is  entitled  to  the  money  due.  Swepson  v.  Rouse, 
65  N.  C.  34  ;  and  a  third  person  who  holds  a  deed  executed  by  the  vendor  as  an 
escrow,  and  who  refuses  to  deliver  it  to  the  vendee,  is  a  proper  co-defendant. 
Davis  11.  Henry,  4  W.  Va.  571.  In  Downing  v.  Risley,  2  McCarter,  93,  a  suit  was 
brought  by  heirs  of  a  deceased  vendee  against  a  grantee  with  notice  of  the 
vendor,  and  it  was  held  that  the  administrator  of  the  vendee  was  also  a  necessary 
defendant  where  the  estate  of  the  vendee  was  unsettled,  his  debts  unpaid,  and  the 
amount  of  the  assets  small  In  Powell  v.  Young,  45  Md.  414,  a  third  person  who 
had  conspired  with  the  vendor  to  prevent  a  completion  of  the  contract,  and  had 
aided  him  in  preventing  such  completion,  was  held  a  proper  co-defendant,  and  to 
be  liable  with  the  vendor  for  compensation. 

566 


554  HFECIFIV   Fh'KFOHMAACK    OF   COSTli.iCTS. 

question  has  been  devised,  and  where  the  heirs  are  sued  all  of 
thera  should  be  joined. (I)  If  the  suit  is  against  a  devisee  of  the  land 
in  question,  it  does  not  seem  to  be  necessary  to  join  the  heirs,  unless 
the  will  is  disputed.  If  the  purchase-money  remains  unpaid  in  whole 
or  in  part,  the  personal  representatives  of  the  vendor  are  also  neces- 
sary co-defendants,  and  they  are  always  proper  parties. (2)  This  rule 
applies  as  well  to  infant  as  to  adult  heirs.  They  should  be  made  defend- 
ants, and  the  decree  will  be  enforced  ag'ainst  them  after  they  arrive  at 
age,  or  by  virtue  of  statutory  provisions  during  their  infancy. (8) 

(1)  Morgan  v.  Morgan,  2  Wheat.  290 ;  Moore  v.  Murrah,  40  Ala.  573  ;  Jacobs  t>. 
Locke,  2  Ired.  E(i.  286 ;  Craig  v.  Johnson,  3  J.  J.  Marsh.  iu2  (devisees) ;  Newton 
V.  Swazey,  8  N.  H.  9  ;  9  N.  H.  385 ;  House  v.  Dexter,  9  Mich.  246 ;  Duncan  v. 
Wickliffe,  4  Scam.  452 ;  Traphagen  v.  Traphagen,  40  IJarb.  537  ;  [Wilson's  Estate, 
7  Pa.  Co.  Ct.  Rep.  459  ;  Luco  v.  Commercial  Bank,  70  Cal.  339.]  When  the  suit 
is  thus  brought  against  the  heirs,  those  who  have  already  conveyed  need  not  be 
joined,  the  reason  for  the  omission  being  stated  in  the  pleading.  Barnard  v. 
Macy,  11  Ind.  536. 

(2)  Potter  V  Ellice,  48  N.  Y.  321,  323 ;  Judd  v.  Mosely,  30  Iowa,  423.  427 ; 
Story's  Bq.  Plead.  §§  160,  166,  167  ;  and  see  Thompson  v.  Smith,  63  N  Y.  301.  In 
Potter  V.  Ellice  (siqva),  Hunt,  C.  J.,  said  :  "  It  is  difficult  to  say  that  this  action 
is  well  brought,  the  administrators  of  Ellice  (the  vendor),  not  being  made  parties 
defendant.  The  heir  of  Mr.  E.  holds  the  legal  title  in  trust  to  convey  the  same 
to  the  vendee  upon  performance  of  conditions  of  the  contract.  He  is  a  mere  in- 
strument, having  no  real  interest  in  the  matter  in  acase  where  the  contract  is  jier- 
formed.  The  administrators  are  the  real  parties  in  interest.  Both  by  the  statute 
and  the  common  law  the  interest  in  the  contract  passes  to  them.  They  are  the 
parties  to  whom  the  money  is  to  be  paid,  and  who  have  the  entire  beneficial  in- 
terest in  the  conti-act.  Their  discharge  or  receipt  is  a  necessary  muniment  to  the 
vendee.  They  are  the  parties  who  not  only  receive,  but  who  arc  to  settle,  or  con- 
test, as  the  case  may  be,  the  amount  to  be  paid  by  the  vendee  in  fulfillment  of  his 
contract."  A  statute  of  Iowa  provides  that  the  suit  may  be  brought  against  the 
executor  or  administrator  of  a  deceased  vendor,  and  that  other  parties  are  not 
necessary,  but  may  be  brought  in  at  the  disci-etion  of  the  court.  In  Judd  v. 
Mosely  {supra),  the  action  was  by  the  vendee  against  the  heirs  alone.  The  court 
held  that  the  personal  representatives  are  not  necessary  but  only  pi-oper  parties  ; 
that  in  the  absence  of  the  statute  the  heirs  are  the  only  proper  jiarties  ;  and  that 
the  statute  was  only  permissive,  and  did  not  make  the  administi-ators  or  executors 
necessary  defendants.  The  court  made  no  allusion  to  the  question  discussed  in 
Potter  V.  Ellice — the  payment  of  the  price — and  the  i-epoi-t  does  not  show  whether 
it  had  been  paid  or  not.  If  the  purchase-money  has  been  paiil  in  full,  either  to 
the  vendor  during  his  life,  or  to  his  administrators  after  his  death,  then  the  heirs 
would  seem  to  be,  in  general,  the  only  necessary  defendants.  But  the  personal 
repi'esentatives  are  always  eminently  irroper  jiarties  defendant  to  meet  any  pos- 
sible question  as  to  payment,  and  to  he  concluded  by  the  decree,  and  by  the  Eng- 
lish rule  they  seem  always  to  be  joined.  See  English  cases  cited  (unU)  under  §  489. 
In  Texas  the  suit  is  brought  against  the  administrator  alone  ;  the  heii-s  need  not 
be  joined,  for  they  are  bound  by  the  decree.  This  results  from  the  fact  that  the 
administrator  succeeds  to  the  real  as  well  as  to  the  personal  estate  of  the  decea.secl 
Shannon  v.  Taylor,  16  Tex.  413. 

(3)  Hill  V.  Re.s.segieu,  17  Barb.  162;  Rutphen  j).  Fowler,  9  Paige,  280;  Foiman 
V.  Stickney,  77  111.  575.     In  Sutphen  v.  Fowler,  the  infant  heir  was  decreed  to  con- 

567 


THE  PARTIES.  556 

Wlisre  the  suit  is  against  the  vendee. 

(Sec.  495.  II.  in  all  ordinary  cases  the  rule  is  clear  that  the  vendee 
himself,  or  his  representatives,  are  the  only  proper  defendants.  It  has 
already  been  shown  that  when  the  vendee  assigns  the  contract,  a  suit 
cannot  be  maintained  by  the  vendor  against  the  assignee,  since  a  lia- 
bility arising  out  of  contract  cannot,  except  in  a  few  special  instances,(l) 
be  transferred  by  mere  assignment. (2)  A  third  person  may  assume 
the  liability  by  a  novation,  but  this  requires  a  new  and  distinct  con- 
tract substituted  for  the  original  one.  If  the  vendee  entered  into  the 
contract  as  a  trustee,  or  paid  the  purchase-price  out  of  trust  funds,  the 
cestuis  que  trustent  are  not  necessary  defendants.(3)  Where  a  vendee 
assigned  to  a  trustee  for  the  benefit  of  his  creditors,  and  there  were 
conflicting  claims  concerning  the  land  between  the  vendee,  his  wife, 
and  the  assignee,  it  was  held  that  the  vendor  could  make  all  these 
parties  defendants,  and  thus  settle  all  the  questions  in  one  suit ;  but 
that  the  cestuis  que  trustent  under  the  assignment  were  not  proper 
parties.  (4)  Where  the  plaintiff  in  a  suit  against  the  vendee  claimed 
the  land  under  a  contract  to  convey,  made  by  the  vendor,  the  vendor, 
or,  in  case  of  his  death,  his  legal  representatives  were  held  to  be 
necessary  defendants. (5) 

Where  the  vendee  has  died. 

Sec.  496.  If  the  vendee  dies  before  completion,  and  the  vendor  sues 
for  a  specific  performance,  the  personal  representatives  of  the  deceased 
are  the  primary  defendants,  since  they  are  liable  for  the  price,  and 
must  pay  the  money ;  but  the  heirs  of  the  vendee,  or  his  devisees  if  he 
has  devised  his  interest,  are  also  necessary  co-defendants,  since  the 
conveyance  must  be  made  to  them. (6)  When  both  the  vendor  and  the 
vendee  die  before  completion,  the  parties  to  the  suit  will  be  determ- 
ined by  a  combination  of  the  rules  already  given  in  relation  to  the 

vey  when  he  came  of  age,  and  in  the  meantime  the  vendee  was  put  and  protected 
in  possession.  In  Swartout  v.  Burr,  1  Pa.  St.  495,  which  was  against  an  insane 
heir  of  the  vendor,  the  decree  ordered  a  conveyance  to  be  made  by  his  committee. 

(1)  For  example,  in  covenants  running  with  the  lands. 

(2)  Corbus  V.  Teed,  69  111.  205. 

(3)  Gibbs  V.  Blackwell,  37  III.  191  ;  Story's  Eq.  PI.  §  209. 

(4)  Hanchett  v.  McQueen,  32  Mich.  22. 

(5)  Daily  v.  Lichfield,  10  Mich.  29. 

(6)  Champion  v.  Browne,  6  Johns.  Ch.  402  ;  Townsend  v.  Champemowne,  9 
Price,  130  ;  Story's  Eq.  Pi.  §§  160,  177.  If  the  vendor  sues  the  heirs  alone  of  the 
deceased  vendee,  the  latter  can  insist  upon  the  administrator  also  being  made  a 
defendant,  since  he  is  answerable  for  the  price.  Cock  v.  Evans,  9  Yerg.  287  ; 
Story's  Eq.  PI.  §  177. 

568 


556  SPECIFIC  PERFORMANCE    OF  CONTRACTS, 

death  of  each.  In  general  the  heirs  or  devisees  and  the  personal 
representatives  of  both  tlie  deceased  iiarties  to  the  contract  will  l>e 
proper  if  not  necessary  parties  to  the  suit. 


SECTION   II. 

Special  statutory  provmons  as  to  parties. 

Section  497.  In  most  of  the  states  the  statutes  expressly  provide 
for  the  case  where  the  vendor  dies  before  completing  the  contract,  and 
leaves  heirs  or  devisees  adult  or  infant ;  and,  in  many  instances,  for 
the  case  where  the  vendor  before  completion  becomes  insane.  This  leg- 
islation is  of  different  types ;  in  some  states  it  deals  entirely  with  the 
suit  in  equity  for  a  specific  performance ;  in  others  it  provides  for  a  more 
summary  special  proceeding  by  which  the  contract  may  be  enforced 
without  suit,  as  a  step  in  the  settlement  of  the  deceased  vendor's 
estate.  By  the  common  form  of  this  special  proceeding,  where  a 
vendor  who  had  entered  into  a  WTitten  contract,  dies  before  complet- 
ing the  contract,  and  the  party  entitled  to  a  conveyance  has  poid  or 
is  ready  to  pay  the  purchase-price,  the  probate  court  which  hasconti-ol 
of  the  administration  may  authorize  or  order  the  administrator  or 
executor  of  the  decedent  to  make  the  conveyance  which  the  vendor 
himself  should  have  made  had  he  been  alive  ;  and  the  conveyance 
so  made  is  declared  to  have  the  same  force  and  effect  as  though  it 
had  been  executed  by  the  vendor  himself.  The  application  is  made 
by  the  vendee,  or  his  heirs,  or  assigns,  or  other  party  entitled  to  a 
conveyance,  by  filing  a  petition  in  the  probate  court ;  notice  is 
required  to  be  given  to  all  persons  interested ;  the  necessary  proofs 
are  made  at  the  hearing ;  and  the  court  thereupon,  in  some  states 
grants  a  license  for  the  administrator  or  executor  to  execute  a  deed  ; 

(1)  In  Peters  v.  Jones,  35  Iowa,  512,  518,  the  heirs  and  Nvidow  of  the  deceased 
vendee  brought  a  suit  against  the  devisees  of  the  vendor  to  whom  the  land  liad 
been  devised,  an<l  the  parties  were  htJ^d  to  be  proper.  See  cases  cited  by  Mili.ku, 
J.,  at  p.  518.  In  Anshutz's  Appeal,  34  Pa.  St.  375,  both  vendor  and  vendee  had 
died,  and  a  proceeding  to  enfoi'ce  the  contract  was  brought  in  the  probate  court 
by  the  administrator  of  the  vendor  ;  it  was  held  that  the  heii-a  and  administratf)r 
of  the  vendee  and  all  persons  deriving  title  under  them  were  necessai-y  defend- 
ants, and  that  the  heirs  of  the  vendor  should  have  notice.  Although  this  pro- 
ceeding was  special  and  statutory,  the  question  as  to  parties  was  determined  by 
the  equitable  doctrines  applicable  to  the  more  formal  suit  in  equity  for  a  specific 
performance. 

HBO 


SPECIAL   STATUTORY  PROVISIONS.  557 

in  others  makes  an  order  or  decree  to  the  same  effect,  or  else  dismisses 
the  petition.  In  several  states  the  application  may  be  made,  and  the 
petition  for  an  order  or  license  may  be  filed,  by  the  administrator  or 
executor  of  the  deceased.(l)  The  peculiarity  of  this  legislation  is 
that  it  renders  the  deed  of  the  administrator  or  executor  valid  and 
sufficient  to  pass  the  complete  title,  and  thus  obviates  the  necessity  of 
a  decree  against  and  conveyance  from  the  heirs  or  devisees  whether 
infant  or  adult.  The  proceeding  is  suited  to  cases  of  ordinary  con- 
tracts where  there  is  no  real  controversy  as  to  the  obligations  of  the 
respective  parties,  and  especially  where  there  is  no  dispute  concerning 
the  time  of  performance,  or  the  ability  of  the  vendor  to  perform  and 

(1)  This  form  of  special  proceeding's  established  by  statutes  of  the  following 
states  among  others :  Maine,  R.  S.  of  1871,  p.  551,  §§  16,  17.  On  apijlication  of 
the  vendee,  etc.,  the  probate  court  may  authorize  the  executor  or  administrator 
of  deceased  vendor,  or,  where  there  is  none,  the  guardian  of  the  heirs  of  the 
deceased,  to  execute  the  deed  ;  New  Hampshire,  Gen.  Stat.  1867,  p.  373,  §  10  ; 
Vermont,  Gen.  Stat.  1870,  p. 375,  §§  42,  43,  and  same  provision  as  to  guardian  of 
insane  vendor,  p.  442,  ^  39  ;  Massachusetts,  Gen.  Stat.  1860,  p.  575,  §§  5,  6,  applies 
to  administrator,  etc.,  of  deceased  vendor,  and  to  guardian  of  insane  vendor  ; 
Connecticut,  Gen.  Stat.  1875,  p.  57,  §  29  ;  New  Jersey,  Revision,  1877,  p.  782,  §§ 
132,  133.  The  executor  or  administrator  of  tlie  deceased  vendor,  or  the  vendee  or 
person  entitled  to  a  conveyance  may  apply  by  petition  to  the  orphan's  court,  and 
on  due  notice,  proofs,  and  hearing,  if  the  case  is  a  proper  one,  the  court  may 
decree  the  administrator  or  exeeutor  to  convey.  Michigan,  Comp.  Laws,  1871, 
Vol.  2,  pp.  1419-1421,  $§  1-5.  Application  is  to  be  made  by  the  vendee  or  other 
person  entitled  to  a  conveyance.  If  the  petition  is  dismissed,  it  may  be  without 
prejudice  to  the  right  of  the  jietitioner  to  file  a  bill  in  equity  ;  Illinois,  R.  S.  1874, 
J).  270,  §§  2-5.  The  pi-ovisions  apply  to  executors  and  administrators  of  deceased 
vendors,  and  {o  conservators  of  insane  vendors.  Application  may  be  made  either 
by  the  pai-ty  entitled  to  a  conveyance,  or  by  the  administrator,  executor,  or  con- 
servator of  the  vendor ;  Minnesota,  Stat,  at  Large,  1873,  Vol.  1,  p.  687,  §§  244-247. 
Application  is  to  be  made  by  person  entitled  to  a  conveyance  ;  Mississippi,  Rev- 
Code,  1871,  i>.  237,  §  1195,  on  petition  by  the  vendee,  etc.  ;  Missouri,  R.  S.  1870 
(by  Wagner),  p.  99,  §  38,  on  petition  of  the  person  entitled  to  a  specific  perform- 
ance ;  Kansas,  R.  S.  1876,  §§  2048-2054.  The  pai-ty  wishing  a  specific  perform- 
ance may  file  a  petition  to  the  probate  court  which  may  order  the  executor  or 
administrator  to  perform  such  contract,  specifically  saving  to  infants,  persons  of 
unsound  mind,  and  pei'sons  absent  from  the  United  States,  the  time  of  two  years 
after  their  disabilities  are  removed,  to  appear  and  file  their  petition  to  set  aside 
such  order;  California,  Code  of  Civil  Procedure  (1878),  §§  1597-1607.  Person 
entitled  to  a  conveyance  may  apply  to  the  probate  court  by  2:)etition,  and  after  due 
notice  and  hearing,  court  may  order  the  executor  or  administrator  of  deceased 
vendor  to  convey,  or  may  dismiss  proceeding  without  prejudice  to  a  suit  in  equity  ; 
Dakota,  Rev.  Codes,  1877,  p.  682,  §§  221-231,  same  as  in  California ;  Nevada. 
Comp.  Laws,  1873,  Vol.  1,  p.  175,  §§  687-696,  same  as  in  California ;  Idaho,  Rev. 
Laws,  1875,  p.  281,  §§  205-214,  same  as  in  California ;  Arizona,  Comp.  Laws,  1871, 
p.  279,  §§  205-214,  ditto ;  Wyoming,  Comp.  Laws  1876,  p.  328,  §§  143-148.  Similar 
to  statute  of  Kansas,  [supra) 
570 


658  SPECIFIC  PERFORMANCE   OF  CONTRACTS. 

to  give  a  good  title.  Another  form  of  tlie  special  proceeding  provides 
for  the  appointment  of  a  special  otiicer  or  connni.ssioner  to  execute  the 
deed  where  the  vendor  has  died,  so  as  to  pass  his  estate  and  hind  his 
heirs  or  devisees.(l)  A  third  form  of  the  special  proceeding  provides 
for  an  order  made  directly  against  infant  heirs  of  a  deceased  ven(U)r, 
authorizing  and  directing  them  to  perforin  the  contract  by  executing 
a  deed.  (2) 

Sec.  408.  In  several  of  the  states  the  statutes,  instead  of  creating  a 
special  proceeding,  and  sometimes  in  addition  to  the  provisions 
authorizing  such  proceeding,  relate  entirely  to  the  ordinary  suit  in 
equity  for  a  specific  performance,  modifying  to  some  extent  the  equity 
rules  concerning  parties  where  the  vendor  has  died.  The  usual  form 
of  these  statutory  regulations  permits  the  suit  to  be  brought  against 
the  executor  or  administrator  of  the  deceased  vendor,  instead  of  his 
heirs  or  devisees,  and  makes  the  deed  executed  by  such  executor  or 
administrator  in  performance  of  the  contract,  as  effectual  as  though  it 
had  been  given  by  the  vendor  himself. (3)     In  a  very  few  states  the 

(1)  Indiana,  Revision  of  1876.  Vol.  2,  p.  237,  §§  1-4.  The  executor  or  aihniii- 
istrator  of  the  deceased  vendor  may  file  a  jietition  against  the  vendee,  etc.,  and 
against  the  heirs  or  devisees  of  the  vendor,  and  after  the  proper  notice  and 
hearing  the  court  may  appoint  a  commissioner  to  execute  a  deed  according  to 
the  terms  of  the  contract,  which  deed  shall  be  approved  by  the  court  and  then 
delivered.  The  executor  or  administrator  may  tender  such  deed  to  the  vendee, 
etc.,  and  demand  the  payment  of  the  unpaid  purchase-money,  and  these,  in  case 
of  refusal,  may  maintain  an  action  therefor. 

(2)  New  York,  R.  S.  vol.  2,  p.  194,  §  169  et  seq.  The  supreme  court  or  county 
court  has  power  to  compel  a  specific  performance  by  an  infant  heir  or  other 
person  of  a  contract  to  convey  land  made  by  any  party  who  may  die  befoi-e  per- 
forming, on  the  petition  of  the  executor  or  administrator  of  the  deceased,  or  of 
any  person  interested,  and  on  a  hearing  of  all  the  parties  concernetl.  This  pro- 
ceeding is  siunmary  and  not  by  action  ;  Wisconsin,  R.  S.  1871  (Taylor's  ed.),  chap, 
xcvi,  §  3.  Circuit  court  may  compel  a  specific  performance  by  any  infant  heir  or 
other  person,  of  any  contract  made  by  a  deceased  vendor,  on  petition  of  his 
executor  or  administrator,  or  of  any  person  interested.  This  proceeding  is  sub- 
stantially the  same  as  that  in  New  York. 

(3)  Maine,  R.  S.  1871,  pp.  787,  788,  §§  6-10.  In  an  equity  suit  the  court  may 
require  the  executor  or  administrator  to  convey  the  same  estate  that  the  decease<l 
ought  to  have  done  ;  or  if  any  heirs  or  devisees  are  within  the  state  and  com- 
petent to  act,  the  court  may  direct  them  to  be  joined  ;  if  defonilant  nt'glects  to 
convey,  plaintiff  may  have  judgment  for  possession  according  to  the  terms  of  the 
contract,  and  process  to  put  him  in  possession,  and  may  hold  possession  a.sthougli 
the  land  had  been  conveyed.  If  the  vendee  does  not  sue,  and  the  heii-s  of  vemlor 
are  infants,  or  otherwise  incapacitated,  the  executor  or  administrator  of  deceased 
vendor  may  bring  the  suit  in  equity.  Michigan,  Comp.  Laws,  1871,  vol.  2,  p. 
1419-1422,  §  9.  The  suit  and  decree  may  be  against  the  executor  or  administrator 
of  deceased  vendor,  or  the  heire  or  devisees  may  be  joined.     Iowa,  Code  of  1873. 

571 


SPECIAL   STATUTORY  PROVISIONS.  659 

legislation  is  broader  in  its  compass,  and  extends  to  the  entire  suit  in 
equity,  or  to  many  of  its  important  features.(l) 

p.  426,  §§  2487,  2488.  The  suit  may  be  against  the  executors  or  administrators  of 
vendor,  and  they  may  be  compelled  to  convey  ;  other  defendants  are  not  neces- 
sary, but  may  be  joined.  Tennessee  Statutes,  1871,  vol.  1,  p.  943,  §  2025,  Whea 
the  vendor  dies  his  personal  representative  may  execute  the  deed  to  the  persoa 
entitled  ;  §  2027,  if  there  are  several  such  representatives,  the  deed  of  either  one 
is  effectual.  The  court  has  held  that  the  personal  representatives  may  be  com- 
pelled by  a  suit  in  equity  to  convey.  See  Hale  v.  Darter,  5  Humph.  79  ;  Bartlett 
V.  Watson,  5  Sneed,  288 ;  Nebraska  Gen.  Stat.  1873,  p.  341,  §  329. 

(1)  In   these  states  the  important  rules  concerning-  the  suit  are  reduced  to  a 
statutory  form,  and  modified  in  some  particulars.     Georgia,  Code  1873,  pp.  543, 
544,  §§  3186-3192.     Among  other  changes,  full  payment  of  purchase-price  is  a 
sufficient  part  performance  of  a  verbal  contract ;  California,  Civil  Code  (ed.  of . 
1878),  §§  3384-3395 ;  Dakota,  Rev.  Codes,  1877,  p.  492,  §§  1994-2003. 

572 


inde:^. 


l^Tke  references  are  to  the  seclunis  of  the  text.'\ 


A, 

ABANDONMENT : 

of  iiia  contract,  notice  of,  412,  416,  42r). 

ABSTRACT : 

of  title,  when  to  be  delivered  ;  del}  y  in  delivering-,  413-415. 

ACCEPTANCE  (see  "  Offer  and  Acceptance  "). 

ADMISSION  : 

of  verbal  contract  in  defendant's  auswei',  140,  141. 

AGENCY : 

contracts  of,  not  specifically  enforced,  48. 

AGENT : 

execution  of  contracts  by,  77-80.  89. 
fraud  by,  278. 

ALTERNATIVE : 

contracts,  when  enforced  if  one  alternative  becomes  impossible,  298-302. 

ANSWER : 

of  defendant,  admitting'  verbal  contract,  140,  141, 

ANTE-NUPTIAL : 

contract,  when  specifically  enforced,  1(5. 

ARBITRATION : 

contracts  for  submission  to,  not  specifically  enforced,  291. 
(see  "  Valuers." 

ASSENT: 

essential  to  the  validity  of  a  contract,  58-69. 
(see  "Conclusion.") 

ASSIGNEE : 

of  contract,  how  affected  by  inisi-epresentation  in  making'  the  contract,  226^ 

may  sue  for  a  specific  perfonnance, 

(see  "Partiks.") 

^  573 


562  INDEX. 

[The  references  are  to  the  sections  of  the  text."] 

ASSIGNMENT  : 

of  things  in  action,  when  specifically  enforced,  20,  31. 
of  a  possibility,  31. 

AUCTION : 

contracts  made  at,  79,  80. 

puffers  at,  272-278. 

combination  to  prevent  bidding-  at,  277. 

AWARDS: 

when  specifically  enforced.  21. 

B. 

BANKRUPT : 

performance  of  contract  by  assignee  of,  when  plaintiff,  331. 

BUILDING : 

and  constiniction,  contracts  for,  wnen  specifically  enforced,  23,  312. 


-CAPACITY: 

of  parties  to  contract,  53-56. 
(see  "Parties.") 

CERTAINTY : 

in  contracts,  159-lGl. 

meaning  of,  159. 

examples  of,  159  n. 

contradictory  and  conflcting  terms,  160. 

what  terms  will  be  inferred,  161. 

parol  evidence,  how  far  admissible,  161. 

•CHATTELS : 

contracts  concerning,  when  specifically  enforced,  11-15. 

involving  a  trust,  14. 

are  not  in  general  specifically  enforced,  47. 

COMPENSATION : 

with  partial  specific  performance,  434-468. 

general  doctrine,  434,  435. 

distinction  between  compensation  and  damages,  436. 

where  vendee  sues  for  partial  performance  with  compensation,  438-448. 

general  rule,  438. 

where  vendor  is  a  tenant  in  common,  439. 

where  his  land  is  deficient  in  amount,  439. 

where  his  land  is  subject  to  easements,  or  to  outstanding  dower,  440. 

where  he  cannot  give  a  lease  for  as  long  a  term  as  he  contracted,  441, 

vendee  not  entitled  to  compensation  when  he  had  notice  of  the  defect, 

442,  443. 
constructive  notice,  443. 

574 


INDEX.  563 

[The  references  are  to  the  sections  of  the  text.] 

COMPENSATION— CoH^HMCf/. 

nor  where  he  was  negligent,  444. 

where  there  is  a  defect  in  quantity  alone,  444. 

Btipiilation  in  contract  preventing  compensation,  445,  44C. 

compensation  not  given  when  vciulee  luus  made  misreprcisentations,  nor  when 

it  would  be  injurious  to  third  pei-sons,  44  <. 
nor  where  there  is  tio  basis  for  ascertaining  the  amount,  448. 
where  vendor  sues  for  a  partial  performance  with  comjienaation,  449-456. 
two  classes  of  such  cases,  449. 
general  rule,  450. 
vendor  not  entitled  when  there  has  been  a  mateiial  nusdescription  in  the 

contract,  451-455. 
nor  when  the  land  is  encumbered,  452. 
nor  when  the  title  to  a  matei-ial  part  fails,  453. 
failure  of  title  to  separate  lots,  453. 
deficiency  of  quantity,  454. 
intentional  misrepresentation,  455. 
lime  when  compensation  may  be  allowed,  456. 
enforcement  of  contract  against  husband  and  wife,  457-463. 
(see  "Hlsband  and  Wife.") 
where  the  vendor  has  conveyed  away  the  land  subsequent  to  the  contract, 

464H168. 
(see  "Vendee.") 

COMPLETENESS  : 

of  the  contract,  145-158. 

necessity  of,  145. 

as  to  the  parties,  147. 

as  to  the  price,  148-151. 

it  must  be  fixed  or  provision  made  for  fixing  it,  148. 

when  the  contract  provides  means  for  fixing  it,  149-151. 

when  price  is  to  be  fixed  by  arbitrators,  150,  151. 

as  to  the  subject  matter,  152,  153. 

as  to  other  material  terms,  154. 

what  terms  in  a  contract  are  implied  by  legal  presumption,  155-157. 

time  at  which  the  completeness  must  exist,  158. 

COMPROMISE: 

contract  of,  when  specifically  enforced,  16. 
unexpected  termination  of,  when  not  a  mistake,  239. 

CONCEALMENTS : 

fraudulent,  268-271. 

duty  of  vendor  to  disclose,  269. 

vendee,  270. 
unintentional  failure  to  disclose  material  facts,  271. 

CONCLUSION  : 

of  contracts,  58-69. 


564  INDEX. 

{The  references  are  to  the  sections  of  the  text.] 

CONCLUSION— C'o»<i«Med. 

by  otfer  and  acceptance,  59-66. 

(see  "Offer.") 

time  when  contract  becomes  concluded,  67,  316-319. 

by  promise  to  do  something  on  demand,  68,  69. 

CONDITION : 

in  conditional  contract,  delay  or  failure  in  performing-,  334-338. 

conditions  precedent  and  subsequent,  334,  336,  338. 

failure  to  perform  must  not  be  intentional,  335. 

when  failure  is  mere  delay  in  payment,  335. 

when  defaulting  party  is  in  possession,  337. 

vendor's  default  in  making  title,  337. 

waiver  of  default,  337. 

condition  that  contract  must  be  performed  at  a  specified  time,  378-381. 

CONSIDERATION : 

a  valuable,  essential,  57. 

when  must  be  stated  in  a  written  contract,  92. 

inadequacy  of,  as  affecting  a  specific  perfoi-mance,  192-197. 

inadequacy  of,  when  a  ground  for  rescission,  193. 

■when  defeats  a  specific  performance,  194,  195. 

coupled  with  other  facts  showing  bad  faith,  196. 

CONSTRUCTION : 

of  contracts,  rules  for,  365-369. 

CONTINUOUS : 

contracts,  when  specifically  enforced,  23,  308,  312. 

CONTRACTS : 

classes  of,  6. 

which  may  be  specifically  enforced  on  account  of  inadequacy  of  damages, 

9-27. 
concerning  land,  9,  10. 
concerning  chattels,  11-15. 
miscellaneous  chattels,  15,  16. 

foe  sale  of  goods  when  price  is  to  be  paid  in  long  installmentsj  15. 
for  insurance,  16. 
ante-nuptial,  16. 
of  indemnity,  16. 
of  compronuse,  16. 
concerning  things  in  action,  17-20. 
awards,  21. 

for  personal  acts  or  services,  22. 
for  separation  between  husband  and  wife,  22. 
for  building  and  consti'uction,  23. 
when  enforced  by  injunction,  24,  25. 
■which  may  be  specifically  enforced  on  account  of  the  impracticability  of  the 

legal  remedy,  28-34. 
where  jilaintitf  has  partially  failed  in  perfomiance,  29. 

576 


[71f>'  refere)ire>i  are  to  the  sectirms  of  the  text.'\ 

I 
CONTRA(  'TS— ( •antinuvd. 

wlicn-  lint  himliii^at  law,  80,  31.  ' 

for  assi^imu'ut  of  possibilities,  31. 

betwt't'ii  liushand  and  wife,  31. 

for  saK>  of  land  where  vendor  has  died,  31. 

for  taking-  land  by  railway  companies,  32. 

where  the  terms  are  incomj)lete,  33. 

where  there  is  no  basis  for  the  computation  of  damages,  34. 

in  whicli  a  specific  perform.iHce    is  not  g-i-anted  becansi' the  Ictrjil  remedy 

is  sutHcieut,  47-50. 

concerning  g-oods  and  chattels,  47. 

those  .satisfied  by  an  account  of  i)rofits  and  payment  of  money,  48. 

of  lending-  and  borrowing,  48. 

of  hiring,  and  of  agency,  48. 

for  a  sale  of  ships,  49. 

in  which  in-ovisioii  is  made  for  liquidr.tfMl  damages,  .'JO. 

those  with  a  penalty  may  be  enforci-d,  ,"(0. 

parties  to,  .oS-.'if). 

(see  "Parties.") 

consideration  of;  .">". 

must  be  actually  concluded,  58-()9. 

(see  "(^oNCusi(»-.") 

as  afl['e(,-ted  by  the  statute  of  frauds,  70-144. 

(see  "Stati'te  of  FRxros.") 

must  be  complete,  145-158. 

(see  "  Completeness.") 

must  be  certain,  159-161. 

(see  "Certainty.") 

,      must  be  mutual,  162-174. 

(see  "Mutuality.") 

must  V)e  fair,  equal  and  just,  175-184. 

(see  "  Fairne-ss.") 

the  remedy  must  not  l)e  harsh  or  {ij)pressive,  18l)-191. 

(see  "  Hardship.") 

inadequacy  of  (tonsidei-ation,  192-197. 

(see  "  Consideration.") 

title  must  be  free  fi'om  rea.sonable  doiilit.  19S-208. 

(see  "Title.") 

must  be  free  from  misrepresentation,  209-228. 

(see  "  Misrephese.xtation.") 

must  be  free  from  mistake,  229-267. 

(see  "  Mistake.") 

must  be  free  from  fr:iiid,  2('i7-279. 

(see  "Fraud.") 

must  be  free  from  illegality,  280-2S7. 

(see  "lLLf:fJALiTY.") 

ninst  be  such  that  a  specific  jx-rformance  will  not  be  nugatrry,  289-291. 

577 


566  IXDKX. 

[The  references  are  to  tfie  sections  of  the  text.] 

CONTRACTS— C'o«<iwM6'd. 

agfreemeut  to  enter  into  a  partuerslii)),  290. 

to  submit  to  an  arbitration,  291. 

to  give  a  lease  whidi   must  contain  a  condition  ab-eady   bi-oken  by- 
plaintiff,  291. 
must  be  one  which  defendant  is  capable;  of  performing-,  292-30:!. 
(see  "Defendant.") 

must  be  one  which  the  court  is  able  to  enforce,  ;}()3-312. 
(see  "  Court.") 

for  sale  of  lam  I,  eepiitable  estate  of  jjarties  in,  313-B15. 
(see  "Land;"  "Vendor  and  Vendee.") 
failure  of  .'^uhject-mattei-  in,  320-322. 
interi^retation,  3B.")-369. 
in  whicli  time  is  or  is  not  essential 
(see  "  Tim?::.") 

CONVEYANCE : 

of  the  land  by  vendor,  subsetiiient  to  his  contract,  effect  of,  4(54-4G8. 
(see  "  Vendee.") 

CORPORATIONS : 

contracts  of,  ult7U  vires,  56. 

CORRESPONDENCE  : 

contracts  concluded  by,  81-84. 

COURTS : 

incapacity  of,  to  enforce  specific  perfonnance,  303-312. 

where  court  cannot  render  a  decree  of  performance,  304-306. 

contracts  for  sale  or  manufacture  of  secret  medicines  and  otlier  secret  pro- 
cesses, 305. 

for  sale  of  a  g-ood  will,  306. 

where  the  coui-t  cannot  carry  into  effect  its  decree,  307-312. 

grounds  of  the  doctrine,  307. 

continuing-  cont?"acts,  308. 

sales  at  a  price  to  be  fixed  liy  valuers,  309. 

contracts  for  personal  services,  810,  311. 

contracts  whose  performance  would  be  continuous,  building-  or  construc- 
tion, 312. 

•         D. 

DAMAGES : 

inadequacy  of,  as  g-i-ound  for  a  specific  jierformance,  9-27. 
in  land  contracts,  9,  10. 
in  contracts  conceraing  chattels,  11-16. 
concerning  things  in  action,  17-20. 
in  awards,  21.  ' 

in  contracts  for  pei-sonal  acts,  22. 
in  contracts  for  building  and  construction,  23. 

578 


IXDKX.  r)»)7 

[The  re/ereyicea  are  to  the  sections  of  the  text.^ 

DAMAGES— CoM«iH?«;(?. 

in  contracts  enforced  by  injunction,  24,  25. 

nature  of  inaile<iuacy,  20,  27. 

contracts  in  which  tiierc  is  no  ba^sis  for  computing- dainagos,  34. 

liquidated,  contracts  with,  50.  ^ 

when  given  in  i)lace  of,  or  in  addition  to,  a  si>ecitic  perfoi'niance,  409^81. 

Lord  Caii-ns'  act  in  Eng'land,  470—473. 

rules  prevaihng  in  this  (•diintry,  474-481. 

g'eneral  jurisdiction  of  equity  to  give  damages,  474. 

■where  a  specific  performance  is  known  by  xcndci'  to  be  inipi-.ntic-.ililc  at 

time  of  bi'inging  his  suit,  475. 
where  it  is  made  impossible  by  act  of  vendor  dui-ing  tin-  jimdi'iicy  of  the 

suit,  476. 
where  vendee  brings  his  suit  in  good  faith  without  kiiowl»Mlgc  of  flic  imjiossi- 

bility,  477,  478. 
court  will  not  give  damages  growng  out  of  a  si'par.-ite  cause  of  action,  479. 
right  of  jilaintiff  to  damages  under  the  reformed  jirocedure,  4S0.  4S1. 

DEATH : 

of  vendor,  or  of  vendee,  s^iecial  statutory  proceedings  in  case  of,  4'.I7,  40S. 

DEED: 

form  of,  to  be  given  by  vendor,  304. 

DEFECT : 

of  title,  347-351. 

(see  "Title.") 

in  amount  of  land,  352. 

when  vendee  entitled  to  compensation  therofoi-,  439,  444,  454. 

DEFl'^CTS  : 

sale  of  an  article  "  with  all  its  defects,"  effect  of,  225. 

DEFENDANT : 

incapacity  of,  to  specifically  iierform,  292-302. 

total  incajjacity  of,  293-297. 

must  exist  at  time  of  the  trial,  293. 

caused  by  his  own  act,  294. 

caused  l»y  act  of  a  thii-d  pei"son,  295. 

partial  enforcement,  290,  297. 

partial  incapacity  of,  298-302. 

alternative  contracts  where  one  altemati\<'  is  impossible,  298. 

impossible  from  th('  beginning,  299. 

impossible  by  act  of  God,  300. 

by  act  of  jilaintiff,  301. 

by  act  of  a  sti-anger,  302. 
parties  defendant  in  a  suit  for  specific  pei-foi-manct-,  491-49(i. 
(see  "  Parties.") 

DELAY : 

in  perfoniiing,  its  effe(;t  on  plaintiff's  rights,  40.S  433. 

579 


568  INDEX 

{The  references^  are  to  the  sections  of  the  text.] 

BELAY— Continued. 

by  either  veiKlor  or  vendee  as  plaintiff',  403-420. 

genei-ai  doctrine,  403. 

where  ])hiintitt"has  been  in  jtossession,  404. 

where  caused  by  delen(bint'.s  fault,  405. 

rights  preserved  notwithstanding  the  delay,  406. 

by  vendee  for  speculative  purposes,  407. 

when  the  cii-cunistances  have  altered  during  the  delay,  408. 

when  caused  by  untenable  objections  being  set  uji,  400. 

caused  by  vendee's  pecuniary  inability,  400. 

when  it  defeats  the  object  of  the  contract,  410. 

in  unilateral  conti-acts,  411. 

notice  of  abandonment,  effect  of,  412,  41ti. 

delay  in  furnishing  an  abstract  of  title,  413-415. 

delay  pending  a  negotiation,  417. 

waiver  of,  418^20. 

of  vendor  in  jierfecting  his  title,  421-438. 

where  not  fatal,  421. 

time  within  which  vendor  may  perfect  his  title,  422^23. 

waiver  of,  by  vendee,  424. 

notice  of  abandonment,  425. 

conduct  of  vendor  defeating  his  remedy,  426. 

interest,  rents  and  profits  during  delay,  427-433. 

when  land  becomes  deteriorated,  432. 

when  land  is  sold  by  order  of  court,  433. 

DISCRETION : 

specific  performance,  a  matter  of,  35-40. 

judicial  opinions  collected,  35  n. 

meaning  of,  36. 

legal  and  equitable  remedies  contrasted,  37. 

specific  performance  depends  on  the  same  equitable  principles  as  crtther 

equitable  remedies,  38. 
equitable  elements  of  specific  performance,  39-42. 
its  discretionaiy  character  an  application  of  the  principle,  '*  he  who  seeks 

e(xuity  must  do  equity,"  43-46. 

DONATION  (see  "Gift"). 

DOUBT : 

reasonable,  of  title,  198-208. 
(see  "TiTLB.") 

DOWER: 

inchoate  right  of,  by  vendor's  wife,  effect  of,  460-462;  and  in  §§  345,  34^, 
364  li. 

E. 

ENCUMBRANCES : 

eff'ect  of,  on  right  to  a  specific  performance,  345. 
vendee's  right  to  a  compensation  therefor,  440,  4.'')2. 

580 


i 


INDEX.  f)fiJ» 

[The  references  are  to  the  sections  of  tht^  ttxt.] 

ESTATE : 

of  pai'ties  under  a  land  contract,  :il3-315. 

(see  "  Ykndok,"  "  Vkndek.") 

when  passes  to  the  vendee,  81t>-:>H<. 

in  private  sales,  317.  , 

in  sales  by  order  of  court,  31iS. 

in  conditional  sales,  319. 

of  vendor  must  he  same  which  he  agreed  to  convey,  343-346. 

hi  contract  to  give  a  lease,  344. 

fi-eehold,  344. 

fee,  344. 

an  estate  in  possession,  345. 

an  estate  without  encnimbrances,  34."). 

an  entire  estate  when  vendor  is  only  a  tenant  in  coniniou,  IMH. 
difference  must  be  substantial,  340. 

EVIDENCE : 

object  and  effect  of  in  cases  of  part  performance  of  \(!i-bal  coiitract.s,  107, 
108. 

of  the  contract,  in  cases  of  part  perfoi-mance,  136-138. 

must  be  clear  and  certain,  136. 

need  not  be  beyond  a  reasonable  doubt,  137. 

where  it  may  vary  from  the  allegations,  137. 

where  a  wntten  agreement  has  been  varied  by  parol,  and  the  i)ai-()l  varia- 
tion has  been  part  pei'formed,  138. 

parol,  when  admissible  to  render  a  contract  certain,  161. 

parol,  when  admissible  on  part  of  defendant  to  vary  a  written  ivintr.irt  im 
account  of  mistake,  246-253,  254-258. 

(see  "Mistake.") 

parol,  when  admissible  on  part  of  plaintiff  to  reform  and  enforce  a  written 
contract,  259-266. 

(see  "Mistake.") 

F. 

FAILURE  : 

of  vendor's  estate  or  title,  339-2.13. 
(see  "Title,"  "Vendor.") 

FAIRNESS : 

of  contracts,  175-184. 

g'eneral  doctrine,  175. 

unfairness  of  the  contract  itself,  177-18:,'. 

time  when  it  must  exist,  177,  178. 

incidents  affecting'  the  contract,  age,  ignorance,  etc.,  179, 

what  contracts  are  unfaii-,  180-182. 

breaches  of  trust,  180. 

injuring-  third  pei"sons,  181. 

miscellaneous  cases,  182. 

581 


570  INDEX. 

[The  references  are  to  the  sections  of  the  text.] 

FAIRNESy — Continued. 

extrinsic  circuuistances  rendering  contract  unfair,  183,  184, 
concealment,  uneciual  knowledge,  intoxication,  184. 

FORFEITURE : 

contracts  working  a,  not  specifically  enfbi-(;ed,  190. 

of  contract,  if  it  is  not  performed  at  a  specified  time,  378-381. 

FRAUD : 

of  defendant,  when  takes  a  verbal  contract  out  of  the   statute   of  frauds,, 

142-144. 
is  foundation  of  doctrine  of  part  perfonuance,  103-106. 
as  shown  by  inadequacy  of  consideration,  194,  195. 
as  rendering  a  title  doubtful,  207. 
contract  must  be  free  from,  267-270. 
concealments,  268-271. 
puffing  at  auctions,  272-276. 

secret  combination  to  prevent  competition  at  auctions,  277. 
by  agents,  278. 
waiver  of,  279. 
(see  "Misrepresentation,"  "Concealment,"  "Puffers.") 

FRAUDS : 

statvite  of. 

(see  "  Statute  of  Frauds.") 

FUTURE : 

tei-ms  of  a  contract,  performance  of,  by  plaintilF,  330-332. 

^' 

GIFTS : 

parol,  of  land,  when  specitically  enforced,  130,  131. 

GOOD-WILL : 

contracts  foi'  sale  of,  when  specifically  enforced,  306. 

H. 

HARDSHIP : 

when  ground  for  defeating  a  specific  performance,  185-191. 

time  when  it  must  exist,  186,  187. 

what  are  hardships,  188-191. 

contracts  working  a  foi-feiture,  190. 

contracts  for  sale  of  reversions  and  fntui-(!  estates,  191. 

HIRING : 

contracts  of,  not  specifically  enforced,  48, 

HUSBAND : 

and  wafe,  contracts  for  sei)aratioii  of.  \\li<>n  sjiecitically  enforced,  22. 
contracts  between,  when  onfovccd,  31 . 

582 


i\nf-:x.  571 

[The  references  are  to  the  sections  of  the  text.^ 

IIUSBAND~Co;i//HMC(/. 

enf()r<-i'iiR'nt   of  ((Hitrjuts  aj^aiiist,  wlscii   wife   lias   au  iiitfit-st   in  tli<i  lan<l« 

4o7-4t;:{. 
agfainst  InisUand  wlio  has  a  )>artial  iiitn-i'st,  4r)S,  4ti;{. 
not  against  the  wife,  4r)i>.  , 

when  wife  of  ven(h>r  hits  an  im-hoate  dower  rif,""!!!,  ami  i\'fut«'.s  to  join  in  the 

deed,  4(J0-4(i-J. 

I. 

ILLEGALITY : 

contract  must  be  free  from,  280-287. 
illegal  contracts  in  general  void,  280. 
kinds  of,  281. 
contracts  illegal  by  statute,  282. 

opposed  to  iiu])lic  policy,  283. 

op2)Osed  to  good  morals,  284. 

in  violation  of  fiduciary  duty,  28.'i. 
defense  of,  rests  upon  i-easons  of  pul  )lic  policy,  2SH. 
how  far  defense  "+".  extends,  287,296. 

IMPLIED  : 

terms  in  contracts,  l')'i-l'^l. 
in  contracts  to  sell  land,  155. 

for  a  lease,  156. 
when  overcome  by  express  provisions,  157. 
to  render  a  contract  certain,  161. 

IMPOSSIBILITY : 

of  performance  by  defendant,  2112-802. 

(see  "Defendant.") 

of  pei-formance  by  the  court,  80:^-312. 

(see  "  Court.") 

of  iiei'formance  by  plaintitf,  827. 

IMPRACTICABILITY  : 

of  legal  )-emedy,  28-84. 
(see  "  Lk(jal  Remkuy.") 

IMPROVEMENTS  : 

when  an  act  of  part  pei"formancc.  126-132. 

reasons  of  the  rule,  126. 

nuist  grow  out  of  the  contract,  127. 

must  be  permanent  and  beneficial,  but  need  not  be  judic-ious,  128. 

their  loss  must  cause  injiu-y  to  the  vendee,  129. 

when  ground  for  enforcing  a  i)ai'ol  gift  of  land,  180,  181. 

when  ground  for  enforcing  a  parol  'icense,  1.32. 

INADEQUACY: 

of  damages,  9-27. 
(see  "  Damages.") 

583 


572  INDKX. 

[The  references  are  to  the  sectiotis  of  the  text.} 

INCAPACITY : 

of  defendant  to  perform,  292-302. 
(see  "Defendant.") 

of  court  to  enforce  performance,  303-312. 
(see  "  Court.") 

INCOMPLETE  : 

contrai-ts,  wIkmi  .speidtieally  enforced,  33. 

INDEMNITY : 

contract  of,  when  speeitically  enforced,  16. 

INJUNCTION : 

CDutracts  specifically  enforced  by,  24,  25. 

INSOLVENT : 

performance  by,  332. 

INSURANCE : 

contract  of,  when  specifically  enforced,  16. 

INTEREST : 

rig-ht  to,  in  si)ecific  enforcement  of  couti-acts,  42~-4'6'd. 

INTERPRETATION : 

of  contracts,  rul»s  for,  365-369. 

INTOXICATION  : 

when  defeats  a  specific  pei-formamte,  184. 

INVALID : 

contracts  at  law,  when  specifically  enforced,  30,  31. 

under  statute  of  frautls,  30. 

assignment  of  a  jiossibility,  31 . 

assignment  of  things  in  action,  31. 

between  husband  and  wife,  31. 

for  sale  of  land  when  vendor  lias  died,  31. 

J. 

JLTIISDICTION  : 

to  grant  a  specific  performance,  grounds  of,  7,  8.- 
inadequacy  of  damages,  9-27. 
(see  "Contract,"  "Damages.") 
impracticability  of  the  legal  i-emedy,  28-34. 
(see  "Contracts,"  "Legal  Remedy.") 
exercise  of  is  discretionary,  35-46. 
(see  "  Discretion.") 

L. 

LACHES : 

laches,  403-433. 

(see  "  Delay.") 

584 


tXDEx.  573 

[TJw  referei^ces  are  In  the  sections  of  the  text.] 

LAND: 

coiitniets  concerning  specitic  performance  of,  9,  10. 

when  vendor  has  died,  31,  497,  498. 
equitable  estate  of  iiarties  to,  313-315. 

(see  ••  Vexdok  and  Vkndke.") 

I 

LA\Y  : 

mistake  of.  232-237. 
(see  "Mistake.") 

LEASE : 

contracts  foi\  specitically  enforced,  9,  10,  notes. 

part  perfoi-niance  of  vei-bal  contract  for,  124. 

enforcement  of  a  contract  to  give  a  lea^^e,  in  which  must  \h^  inserted  a  romli- 

tion  ah-eady  broken  by  plaintitf,  291. 
conti'act  for,  wIk^u  broken  by  plaintitf 's  own  acts,  3r>.'),  3.")t). 

LEGAL  REMEDY : 

impracticability  of,  as  a  g-ronnd  for  j^  specific  performance,  28-34. 

in  contracts  which  plaintiff"  hjus  failed  to  perform,  29. 

in  contracts  not  binding  at  law,  30-32. 

in  contracts  which  are  inconij)leto,  33. 

in  contracts  where  there  is  no  basis  fui-  computing'  the  damages,  34. 

■when  legal  reniedy  is  sufficient  a  specific  performance  is  not  gi-anted,  47-50. 

(see  "  Contracts.") 

LETTERS : 

contra'its  concluded  by,  81-84. 

LICENSE : 

jiai'ol,  when  enforced,  132. 

LigUIDATED-. 

damages,  conti-acts  with  provision  for,  not  specitically  enforced,  .10. 

M. 

MARKETABLE : 

title,  what,  201. 

MARRIAGE: 

is  not  an  a(;t  of  part  pei-foi'mnnce.  111. 
may  V)e,  in  connection  with  othci-  acts,  133. 

MARRIACiH  SETTLEMENT: 

enfonrement  of,  by  issue  and  collaterals,  328,  329.' 

MARRIED : 

women,  contracts  of,  ;">."). 
(See  "HrsBAND  a.m)  Wikk.") 

MEMORANDUM : 

under  statute  of  frauds,  70-144. 
(See  "  Statute  of  Frat-os.") 


574  lyuLX. 

[The  references  are  to  the  sections  of  the  textJ] 

MISREPRESENTATION : 

effect  of  oil  contracts,  209-228. 

general  rule,  209,  210. 

elements  of,  211. 

form  of,  212. 

puiiiose  for  which  made,  213. 

liilsity  of,  214. 

knowledge  or  belief  of  the  party  making  it,  21.5-217. 

in  actions  at  law  and  in  suit  for  a  rescission,  215,  21(5. 

in  suit  for  a  sjiecitic  performance,  217. 

effect  of,  on  party  to  whom  made,  218-226. 

must  be  an  inducement  to  enter  into  the  contract,  218. 

when  he  is  justified  in  relying  upon  it  and  when  not,  219-22fi. 

must  be  of  facts  and  not  a  mere  opinion,  219. 

where  he  has  learned  the  truth  or  has  had  the  means  of  learning  it,  220-222. 

when  the  falsity  is  open  and  palpable,  223. 

his  knowledge  of  the  truth  must  he  cleai-ly  proved,  and  will  not  be  presumed, 

224   22.5. 
sale  of  a  thing  "  with  all  of  its  defects,"  225. 
effect  of  misrepresentation  on  assignee  of  the  contract,  22.3. 
materiaUty  of,  227,  228. 
where  intentional  and  fraudulent,  228. 

MISTAKE : 

contract  must  be  free  from,  229-266. 

general  rule,  229,  230. 

kinds  and  effects  of,  231. 

what  kinds  are  grounds  for  equitable  relief  eilhei-  affirmative  or  defensive, 

232-242. 
must  be  of  fact  and  not  of  law,  232-237. 
of  law,  general  rule  concerning,  233. 

limitations,  when  mistakes  of  law  may  be  grounds  f(ir  relief,  234,  235. 
ignorance  of  the  law,  236. 

mistake  of  law  produced  l)y  misleading  conduct  of  the  other  pai-ty,  237. 
how  proved,  238. 

unexpected  termination  of  compromises,  etc.,  239. 
must  be  material,  240. 
intentional  act  or  omission  not  a,  241. 
parol  change  of  a  written  contract,  is  not,  242. 

when  set  up  hy  defendant  to  defeat  a  specific  performance,  243-258. 
when  defendant's  mistake  is  induced  by  j-ilainfiff's  acts,  244. 
where  it  is  solely  due  to  defendant,  245. 
where  defendant  seeks  to  reform  the  written  conti-act  in  suit  on  groruid  of 

mistake,  246-258. 
parol  variation  alleged  by  defendant,  246. 
where  the  writing  fails  to  state  thn  real  contract,  247. 
j-efonning  the  conti-act  in  such  a  case,  24S,  249. 
mutual  mistake  as  to  subject-matter,  250. 

586 


i.yDKx.  676 

[The  references  are  iu  the  sections  of  the  te<tt.] 

MIST  AK  E—  Co  n  tin  ued. 

mutual  iiiisuniU'i-stunilinjr  of  the  i-oiiti-art,  L'.")!. 

luistake  of  (lofcndant  alone,  as  a  irroiind  tni-  varying,'-  tlic  coufract,  'l'\'-2-17u\. 

how  far  }>arol  evidfuco  js  aduussililc  to  vary  a  written  conlrart,  2r)4-2.")S. 

affii'mative  relief  to  defc^ndant  luiiler  a  counter-claim.  2r)S. 

when  mistake  is  alleged  hy  jjlaintiff  as  gi-ound  for  refonnin;,'-  tin-  conlrai-t 

and  enforcing  it  as  i-efoi-med,  2r)'.t-'2t)(). 
English  rul(\  2r)9,  2(50. 

American  rule  permitting  such  reformation  an<l  enfonrenient,  2(J1,  2(>2. 
limitations  ujion  the  American  rule  adoi>ted  by  certain  courts,  2(i;}-2t!('.. 

MONEY : 

contracts  for  IcMiding,  borrowing  or  payment  of,  not  siiecifi<-ally  enforced,  4S. 

MUTUALITY : 

necessary  in  contracts  and  in  the  remedy,  (5,  1(12- 1 74. 
general  rule  as  to  mutuality  in  the  contract,  Jt)2-1()4. 

as  to  mutuality  in  the  remedy,  1(55. 
time  when  it  must  exist,  166. 
limitations  on  the  doctrine,  167-174. 
in  unilateral  contracts,  168. 
in  conti-acts  giving  an  option,  169. 

in  written  contracts  imder  statute  of  frauds  signed  by  only  one  jiaiiy,  170. 
where  the  requisite  of  mutuality  is  waived,  171-174. 
in  contracts  where  the  vendor  has  no  perfect  title,  171. 
in  contracts  binding  on  only  one  partj>  on  account  of  i-(M-taiu  ]>ers(iiial  rel.-i- 

tions,  172. 
in  contracts  which   vendor  can   only  jjartly^  juTlmin   \\\\\\    cniuiiciisation, 

173,  174. 

N. 

NEGOTIATION : 

effect  of,  on  a  delay  in  performance,  417. 

NOTICE : 

in  order  to  make  time  of  jierformance  essential,  305-398. 
(see  "Time.") 

of  abandonment  of  ccmtract,  412,  416,  425. 

to  vendee  of  defect  in  vendor's  title  or  estate,  when  defeats  his  right  to 
compensation,  442,  443. 

0. 

OBJECTIONS : 

to  vendor's  title,  when  can  be  made  by  vendee,  353. 

OFFER : 

and  acceptance,  conclusion  of  contracts  by,  59-()(). 
nature  of  otfer,  6U. 
how  terminated,  61 

5H7 


576  INDEX. 

[The  references  are  to  the  sectionft  of  the  text."] 

OFY'ER— Continued. 

by  a  refusal  or  delay,  62. 

nature  of  acceptance,  63. 

must  be  unconditional,  and  not  vary  from  tin;  offer.  84. 

and  without  unreasonable  delay,  65. 

manner  and  form  of,  66. 

OPPRESSIVE : 

a  specific  performance  must  not  be,'  185-191. 
(see  "Hardship.") 

OPTION : 

contracts  giving-  an,  when  enfoi-ced,  169. 

time  in  performance  of,  whether  essential,  374,  387,  388. 

delay  in  performing,  411. 

P. 

PAROL  EVIDENCE  (see  "  Evide.n-ce  "  —  '* Mistake  "). 

PAROL  VARIATION: 

of  a  written  contract,  is  not  a  mistake,  242. 

when  allowed  on  application  of  defendant  on  account  of  mistake,  246-258 

on  application  of  plaintiff,  259-266. 
(see  "Mistake.") 

PART  PERFORMANCE : 

of  verbal  contracts,  96-138. 
in  what  States  adopted,  96,  97. 
doctrine,  how  regarded  by  the  courts,  98. 
classes  of  contracts  to  which  it  is  applied,  99-101. 
equitable  grounds  of  the  docti'ine,  102-109. 
fraud  of  the  defendant,  the  foundation,  103,  104. 
nature  and  purpose  of  the  acts,  must  be  by  the  plaintiff,  105,  106. 
must  be  in  pursuance  of  the  conti-act  and  to  carry  it  into  execution,  107-109. 
object  and  effect  of  the  evidence  showing  acts  of,  107,  108. 
acts  which  do  or  do  not  amount  to  a  part  performance,  110-135. 
acts  in-ior  to  the  contract  do  not,  110. 
acts  preparatory  or  ancillary  to  it,  do  not,  110. 
marriage  alone,  is  not.  111. 
payment  of  price  is  not,  112,  114. 
but  is  in  Iowa,  112. 
reasons  of  this  rule,  113. 
when  the  rule  does  not  apply,  114. 
possession  taken,  is,  116-125. 
(see  "P0SSE.SS10N.") 
improvements  are,  126-132. 
(see  "Improvements.") 

marriage  in  connection  with  othoi-  acts,  may  be,  133. 
possession  or  improvements  in  connection  with  payment,  T34. 
588 


/ynKA'.  577 

[The  re/ei-ences  are  to  the  seclUms  of  (he  tej;t.] 

PART  PERFORMANCE—  Condn  ucd. 

work,  labor,  or  jM-rt^mial  Sfrsiccs  l>y  vcndci-.  may  1»<',  135. 
eviilence  in  cases  of  part  perlonuance,  ll'(i-i;iiS. 

(sot'   "  EVIUENCK.") 

PARTIAL : 

specific  performance,  with  compensation,  -in  I  4(18. 

(see   "  COMFKNSATION.") 

ag'ainst  husVjand  aiul  wife,  4.')7— 403. 

(see  "Hi'SBAXD  and  Wife.") 

where  vendor  hiis  conveyed  away  the  land  si-.^st-ipiciit  1<i   the  contract, 

464-4<5S. 
(see  "Vendee.") 

PARTIES : 

to  contracts,  capacity  of,  53-56. 

of  married  women  under  State  statutes,  .^).'). 

abstract  of  statutes,  55,  n. 

of  corporations,  ultra  vires,  56. 

how  contracts  must  be  signed  by  the,  74,  TO. 

how  to  be  stated  in  the  ^vl•itten  memorandinn  of  contract,  88,  89. 

essential  to  the  completeness  of  a  contract,  147. 

plaintiff  and  defendant,  to  the  suit  for  a  specific;  pei-fnrmaucii,  482-496. 

.general  rule,  483. 

parties  plaintiflf,  484-490. 

in  suits  on  behalf  of  vendee,  484-488. 

who  may  be  joined  as  plaintifi's,  484,  485. 

person  for  whose  benefit  the  contract  is  made,  486. 

when  vendee  has  assigned  the  contract,  4R7. 

when  vendee  has  dieil,  488. 

in  suits  on  behalf  of  the  vendor,  489,  490. 

who  may  be  joined,  489. 

when  vendor  has  died,  490. 

parties  defendant,  491—496. 

in  suits  against  vendor,  491,  494. 

who  may  l)e  joined,  491. 

i  when  vend(>r  is  a  trustee,  492. 

I 

when  vendor  has  assigned,  493. 

when  vendor  hjvs  died,  494. 

In  suits  ag'ainst  the  vendee,  495,  496. 

when  the  vendee  has  ilied.  496. 

special  statutory  pro-.nsions  as  to  parties  to  the  suit,  497,  498. 

PARTNERSHIP : 

contract  to  enter  »nto,  enforcement  oi',  290. 

PATENTS  : 

assig-iunent  of,  specifically  enfoi-cetl,  20 
PAYMENT : 

of  purchase-price,   not  an   a<'t   of  ji.art   performance  of  verbal  contracts, 
112-114. 

37  589 


578  i.xDEX. 

[Tlie  references  are  to  t)ie  sections  of  the  text.] 

PAYMEJST—Contimied. 

but  is,  ill  Iowa,  112. 
reasons  for  the  rule,  IIB. 

when  tbt;  rule  does  not  apply  in  conti-acts  for  some  personal  services,  114. 
lime  of,  whether  essential  or  not  in  performance  of  contracte,  374,  375,  378- 
3S0,  391,  393. 

PENALTY: 

contracts  with,  may  be  sjiecilically  enforced,  50. 

PERFORMANCE ; 

failure  of,  by  plaintiff,  at  law,  when  ground  for  a  specific  enforcement,  29. 

impossibility  of,  by  defendant,  292-302. 

(see  "Defendant.") 

impossibility  of,  by  the  court,  303-312. 

(see  "Court.") 

rights  to,  how  affected  by  the  equitable  estate  of  the  vendee,  315. 

by  plaintiff,  a  condition  ijrecedent  to  his  obtaining'  a  sjiecitic  enforcement, 

323-369. 
(see  "Plmntiff.") 
time  of,  by  plaintiflt;  370-433. 
([see  "  Time.") 
when  vendor  has  conveyed  away  the  land  subsequent  to  the  contract,  4t54- 

4G8. 
(see  '•  Vendee.") 

PERSONAL  ACTS  : 

and  services,  contracts  for,  when  specifically  enforced,  22,  310,  311. 
wlien  a  good  part  performance  of  a  verbal  contract,  114,  135. 

PLAINTIFF : 

performance  by,  a  condition  to  his  obtaining  a  specific  performance,  323- 

3(39. 
general  rule,  323,  324. 
substantial  performance  sufficient,  325. 
tender,  when  excused,  326. 
impossibility  of,  327. 
in  the  enforcement  of  marriage  settlements  by  issue,  collaterals,  etc.,  328, 

329. 
performance  of  future  terms  of  a  contract,  330-332. 
by  a  trustee  when  the  xjlaintiff,  331. 
by  assignees  of  a  l)ankrupt,  331. 
by  an  insolvent,  332. 
performance  of  his  i-epresentations,  333. 
performance  of  conditions  in  a  conditional  c-ontract,  334-338. 
conditions  precedent  and  subsequent,  334,  336,  338. 
failure  must  not  be  intentional,  835. 
when  a  defaulting  jilaintiff  has  been  in  possession,  337. 
when  vendor  has  delayed  in  making  a  good  title,  837. 

690 


jyDKX  579 

[IVie  references  are  to  the  sections  of  the  text.^ 

PLAINTIFF— tVw^'/i  wr(^ 

waiver  of  (lofaiilt  hy,  337. 

failure  of  vendor  when  plaiutitt'to  ^ive  a  g-ood  title,  335t-3r)3. 

(see  "  Vendor,"  "Title.") 

affirmative  acts  of,  in  violation  of  his  contract,  3y4-3.")it. 

general  rule,  354. 

in  contract  to  give  a  lease,  3.")."),  3.")tj. 

in  other  contracts,  357. 

what  acts  do  not  defeat  his  remedy,  358. 

waiver  of  by  defendant,  359. 

tender  by,  360-363. 

(see  "Tender.") 

time  of  perforniunce  by,  370-433. 

(see  "Time.") 

party  plaintiff"  in  suits  for  a  specific  performance,  484-400. 

(see  "  Partiks.") 

POSSESSION : 

of  land  under  a  verbal  contract,  a  jiart  performance,  115-1:15. 
reasons  of  the  rule,  and  kind  of  possession,  115-117. 
must  be  with  consent  of  vendor  exjiress  or  presumed,  119. 
must  be  actual,  open,  etc.,  120. 
must  be  definite  and  exclusive,  121. 

by  tenants  in  common,  121 , 
must  be  of  the  very  tract  bargained  for,  122. 

in  sale  of  separate  lots,  122. 
must  be  in  pui-suance  of  the  contract,  123-125. 
continuing  possession,  124. 

by  a  lessee  under  contract  for  a  new  h'ase,  124. 
must  be  .subsequent  to  the  contract,  125. 
as  excusing  delay,  404. 

POSSIBILITY : 

assignment,  of,  when  enforce;!,  31. 

PRESUMPTIONS : 

terms  of  contract  implied  by,  155-157. 

(see  "Implied  Terms.") 

effect  of,  on  doubtful  titles,  20.5-207. 

PRICE : 

how  to  be  stated  in  written  memorandum  of  contract,  93,  94. 

must  be  fixed  or  the  means  jjrovided  in  the  contract  for  Hxing  it,  14*^-151. 

when  to  be  fixed  by  arbitrators  or  valuers,  150,  151,  309. 

when  valui'rs  fail  or  refusi'  to  act,  150,  151. 

time  for  jjayment  of  by  veiidi'i-,  when  essential.  374,  375,  37s-.'<><0.  391,  393. 

(see  "Time.") 

PUFFERS : 

at  auction,  272-276. 
when  allowed,  273. 

591 


580  lyntjx. 

[The  refcrencefi  are  to  the  sections  of  the  text] 

PUFFERS— CoTi/  i  ,1  tied . 

when  not,  274,  275. 

recent  Eng-lish  statute  (ionceniing,  276. 

PURCHASER : 

from  the  vendoi-,  liability  of,  2!>4,  464-468. 
(see  "  Vendee.") 

Q. 

QUANTITY  : 

of  land,  deficiency  in,  352. 

R. 

RAILWAY : 

contracts  for  construction  of,  when  specifically  enforced,  23. 
contracts  for  taking-  land  by,  32. 

REFORMATION : 

of  written  contract,   on  application  of  defendant,   on  a,c(tount   of  mistalcc, 

246-258. 
(see  "MrsTAKB.") 

at  suit  of  plaintiff,  259-266. 
(see  "  Mistake.") 

REMEDIES : 

for  breach  of  contracts,  2-4. 

REMEDY : 

mutuality  in,  162-174. 

(see  "Mutuality.") 

must  not  be  har.sh  or  oppressive.  18.5-191. 

(see  "Hardship.") 

RENTS  AND  PROFITS : 

rights  to,  in  a  specific  performance,  427-433. 

REPRESENTATIONS : 

false,  200-228. 

(see  "Misrepresentations.") 

performance  of  his,  by  plaiiitiif,  333. 

REVERSIONARY : 

interests,  contracts  foi-  sale  of,  when  enforced,  191. 

RIGHTS : 

primary  and  remedial,  1. 

s. 

SALE : 

of  goods,    contracts   foi-,   with   price    payable    in    long-   in.stallments,    whcii 
specifically  enforced,  15. 

592 


lynKX  581 

[T//e  reference^  are  to  (Iw  sections  of  (he  text.'\ 

8AXE — ContinHed. 

of  shiiis,  contracts  for,  not  specifically  ciitun'tMi,  4'.t. 

"  with  all  its  defects,"  effect  of,  225. 

of  land,  when  estat*'  i)a.'*.s(\s  to  vt'iuli'c  or  vt-niloi-,  310-319. 

in  private  sales,  317. 

in  sal»>s  by  order  of  the  ccmrt,  318. 

in  conditional  sales,  319. 

SECRET : 

processes,  contracts  couceminfjf,  not  specifically  cnfoncd,  805. 

S1<:PARATI0N : 

by  husband  and  wife,  contracts  for,  when  entbrt-cd,  22. 

SHIPS : 

contracts  for  sale  of,  not  spccitically  enforced,  49. 

SIGNATURE : 

of  written  contract,  74. 

by  what  j)arties  to  be  made,  75,  76. 

how  made  by  an  ag'ent,  77-80. 

SPECIFIC  PERFORMANCE  : 
described,  1-5. 

class  of  contracts  to  which  it  apphes   6. 
by  vendor  of  land,  6. 
jimsdiction  in,  grounds  of  the,  7,  8. 
from  inadequacy  of  damag-es,  9-27. 
(see  "  Contracts,"  "  Damages.") 
from  the  impracticability  of  the  legal  remedy,  28-34. 
(see  "  Contracts,"  "  Legal  Remedy.") 
is  discretionary,  35-40. 
(see  "Discretion.") 

is  not  granted  when  the  leg'al  remedy  is  sufficient.  47-50. 
(see  "  Contracts.") 

of  contracts  made  by  married  women  and  by  coi-pciratidiis,  53-56. 
(see  "  Parties.") 

the  contract  must  liave  a  consideration,  57. 
the  contract  must  be  actually  concluded,  58-69. 
(see  "CoNCLU.sioN.") 

the  contract  as  affected  by  the  statute  of  frauds,  70-144. 
(see  "Statute  of  Frauds,"  "Part  Perkorman<'e.") 
the  contract  must  be  complete,  14.5-158. 
(see  "  Completeness.") 
the  contract  must  be  certain,  150-1)11. 
(see  "Certainty.") 

the  contract  and  ri'incdy  must  Im-  imitiial.  6,  162-174. 
(see  "  Mutuality.") 

the  contract  must  be  fair,  ('(jual  and  just,  175-I.S4. 
(see  "Fairness.") 

693 


582  INDEX. 

[T/ie  references  are  to  the  sections  of  the  text.] 

SPECIFIC  PERFORMANCE—Continued. 

must  not  be  harsh  or  oppressive,  185-191. 

(see  "Hardship.") 

effect  of  inade(iuacy  of  consideration,  192-197. 

(see    "CONSIDEKATION.") 

the  title  must  he  free  from  doubt,  198-208. 

(see  "Title.") 

the  contract  must  be  free  from  misrepresentation,  209-228. 

(see  "MiSREPKESENTATIOX.") 

the  contract  must  be  free  from  mistake,  229-266.  , 

(see  "  Mistake.") 

the  contract  must  be  fi:ee  from  fraud,  267-279. 

(see  "  Fraud.") 

the  conti-act  must  be  free  fi-om  illeg'ality,  280-287. 

(see  "Illegality.") 

must  not  be  nugatory,  289-291. 

the  defendant  must  be  capable  of  perfoi"ming  the  contract,  292-30?. 

(see  "Defendant.") 

the  court  must  be  able  to  enforce  performance,  303-312. 

(see  "  Court.") 

lierformance  by  plaintiff  a  condition  precedent  lo  his  obtaining  a  specific 

performance,  323-369. 
(see  "Plaintiff.") 

how  far  depends  upon  the  time  of  plaintiff's  perfonnance,  370-433. 
(see  "  Time.") 

partial,  with  compensation,  484^68. 
(see  "  Compensation.") 
when  vendor  has   conveyed  the  land   away  subsequent  to  the  <-ontract, 

464-468. 
(see  "  Vendee.") 

damages  m  place  of  or  in  addition  to  a  specific  performance,  469-481. 
(see  "  Damages.") 

parties  in  a  suit  for  a,  482-496,  497,  498, 
(see  "  Parties.") 

STATUTE  OF  FRAUDS : 

contracts  invalid  by,  when  specifically  enforced,  30. 

memorandum  required  by,  70-144. 

abstract  of  state  statute,  70,  7i. 

object  of  the  statute,  71,  72. 

how  the  memorandum  should  be  executed,  73-80. 

signature,  74. 

by  what  jiarties  signed,  75,  76. 

how,  by  an  agent,  77-80. 

external  fonn  of  the  memorandum,  when  consisting  of  two  or  moi-e  papers, 

letters,  etc.,  81-84. 
contents  of  memorandum,  85-95. 
parties,  how  to  be  stated,  88,  89. 
594 


ixDKX.  583 

[The  reftrences  are  to  the  sections  of  the  text.] 

STATUTE  OF  FRAUDS,— Co7itintied. 

subject  luatter,  how  to  be  suited,  itO. 

the  promises,  91. 

the  consideration,  92. 

the  price,  93,  94.  , 

part  performance  of  vei-bal  contracts,  96-138. 

(see  "  Part  Performance.") 

a  verbal  contract  stipulating  that  it  shall  be  reduced  to  writing' ii»  within 

the  statute,  139. 
admission  of  verbal  contracts  by  defendant'.s  answer,  take^  it  out  of  the 

statute,  140,  141. 
where  vei'bal  contract  is  prevented  from  bein^'  reduced  to  writin;,'-  by  iietiial 

fraud  of  the  defendant,  142-144. 
trusts  ex  maleficio,  143,  144. 
contracts  signed  by  one  party,  enforced  although  not  nuitual,  170 

STATUTORY: 

proceedings,  special,  when  vendor  has  died,  497,  498. 

STOCKS: 

contracts  concei-ning,  when  specifically  enforci-tl,  17-19. 

SUBJECT  MATTER: 

of  contracts,  effect  of  failure  of,  on  rights  of  the  parti(;s,  320-322. 

T. 
TAXES : 

payment  of,  as  part  performance,  135. 

TENDER: 

01  performance,  326-360-363. 

rule  at  law,  360. 

when  excused,  326-361. 

necessary  to  iiut  defendant  in  default  when  neither  party  has  performed,  361. 

necessary  in  contracts  where  time  is  essential,  362. 

in  contracts  where  time  is  not  essential,  is  necessary  a.s  th<i  rule  is  settled  in 

some  states,  363. 
not  necessary  as  the  rule  is  settled  in  other  states,  363. 

THINGS  IN  ACTION: 

contracts  concerning,  when  specitically  enforced,  20. 
assignment  of,  31. 

TIME: 

at  which  contract  is  complete,  158. 

at  which  contract  must  be  mutual,  166. 

at  which  unfairness  of  conti-act  must  exist,  177,  178. 

at  which  hardship  in  the  enforcement  must  exist,  186,  187. 

in  which  contract  must  be  performed  by  the  plaintitt",  370-483. 

time  as  viewed  in  law  aiid  in  ecpiity,  370,  371. 

is  not  ordinarily  essential,  37I?-:5S1. 

distinction  between  essential  and  material,  ;{73. 

in  unilateral  contracts,  ojitions,  etc.  374. 

595 


584  INDEX. 

[The  reference!^  are  to  the  sections  of  the  text.] 

TJME— Continued. 

in  payment  of  price  by  vendee,  374,  375. 

in  delivery  of  deed  by  vendor,  376,  377. 

where  conti-act  i)ro\idea  foi-  ;i  forfeiture  in  case  of  non-performance  at  a 

specified  time,  378-381. 
when  it  is  essential,  382-3rtS. 

when  originally  essential  from  the  nature  of  the  contract  itself,  383-388. 
where  the  value  of  the  subject-matter  changes  with  lapse  of  time,  384,  38.5. 
in  contracts  for  sale  of  stocks, concerning  mines,  and  for  (ither  business  piu-- 

poses,  38;"). 
in  other  special  contracts,  386. 
in  unilateral  conti-acts,  options,  etc.,  387,  388. 
when  made  essential  by  (express  stipulation,  389-394. 
early  rule  and  modern  rule,  389,  390. 
in  stipulation  for  payment  of  money,  391 ,  393. 
stipulation  must  be  clear  and  certain,  392. 
waiver  of,  394. 

when  made  essential  by  a  notice  given  by  one  party,  395-398. 
what  notice  necessary,  396. 
'  waiver  of,  397. 
time  when  material,  399-433. 

three  aspects  of  time,  immaterial,  essential,  and  material,  399^02. 
when  time  is  material  uni'casonable  delay  defeats  plaintiff's  remed}-,  402, 
(see  "Delay.") 

TITLi: : 

of  vendor  must  be  free  from  doubt,  198-208. 

origin  and  meaning  of  the  rule,  198,  19U. 

doubt  as  to  law,  or  as  to  facts,  200. 

cases  in  which  the  title  is  too  doubtful,  201-203. 

when  not  "marketable,"  201. 

when  two  courts  or  judges  diSer  in  opinion  concerning  it,  202. 

when  it  involves  future  litigation,  203. 

nature  and  extent  of  the  doubt,  204-208. 

must  be  reasonal)le,  204. 

in  title  depending  upon  i)resumptions,  205,  2€6. 

title  affected  by  a  prior  voluntai-y  settlement,  206. 

by  fraud,  207. 

under  a  will,  208. 
of  the  vendor,  when  plaintiff,  339-353. 

general  rule  that  his  title  must  b(!  what  he  contracted  to  give,  339,  340. 
where  he  had  no  title  at  date  of  contract,  but  obtained  one  afterwai-ds,  341. 
where  he  had  only  an  equitable  title  at  date  of  contract,  342. 
where  his  estate  is  diffei-ent  fi'om  Avhat  he  conti-acted  to  convey,  343-346. 
contracting  to  give  a  lease  and  only  giving  an  under  lease.  344. 

a  freehold  and  only  having  a  lease  hold,  344. 

an  entire  estate  and  only  having  an  undivided  share  as  tenant  in  com- 
mon, 345. 
596 


INDEX.  585 

{The  references,  are  to  the  sections  of  the  text,} 

TITLE— C(j?i«t7itterf. 

giving-  an  encumbered  estate,  34r>,  452. 

the  ditt'erence  must  be  material,  84<). 

defect  ot"  vendor's  title,  347-8ril,  4r)4. 

what  defects  defeat  his  i-emedy,  347,  34S,  4r)4. 

where  the  vendee  supplies  the  defect,  34 it. 

failure  of  title  to  one  or  more  of  separate  lots,  3.")!,  4.':?. 

deficiency  in  quantity  of  land,  352,  453. 

when  vendee  can  raise  olijections  to  vendor's  title,  3."3. 

time  within  which  vendor  must  make  a  good  title,    and   delay    theix>ii» 

421-433. 
(see  "Time,"  "Vendor,"  "Delay.") 

TRUSTEE : 

performance  by,  when  plaintiff,  331. 

when  party  to  suit  for  a  specific  performance. 

(see  "  Parties.") 

TRUSTS : 

ex  maleficio,  when  enforced,  143,  144. 


u. 

ULTRA  VIRES: 

contracts  of  corporations,  5G. 

UNFAIRNESS : 

in  contracts,  177-18.1. 
(see  "  Fairness.") 

UNILATERAL : 

contracts,  when  enforcea,  _68,  1(59. 
time  whether  essential  in,  374,  3S7,  3S8. 
delay  in  performing-,  411. 

V. 

VALUERS : 

price  to  be  fixed  by,  150,  151,  309. 

VARIATION : 

parol,  of  a  -wiitten  contract,  246-260. 
(see  "  Parol  Variation,"  "  Mistake.  ") 

VFJSTDEF  • 

time  of  pajTuent  l)y,  when  essential  and  when  not,  374,  375.  378-380 

partial  specific  perfoi-inanc-e  with  comiiensation,  at  suit  of,  436-446. 

(see  "  Compensation.") 

rights  of,  when  vendor  has  conveyed  away  the  land  subsfvpient  t<i  the  cxin> 

tract,  464-46S. 
g-eneral  doctrine  of  e(plit^■.  4t)4. 

59/ 


586  INDEX. 

{The  references  are  to  the  sections  of  the  text.'] 

VENDEE— eo?itJ?med. 

liability  of  purchaser  with  notice  from  the  vendor,  465." 

of  bona  fide  jjurchaser  from  vendor,  4t3G." 
rights  of  vendee  when  vendor  conveys  while  the  suit  is  pending",  467. 
rights  of  vendee  to  unpaid  purchase-money  due  the  vendor,  4C8. 
plaintiffs  in  suit  for  a  specitic  performance,  484-488. 
defendants  in  suit  for  a  specitic  performance,  41)5,  4!i(j. 
(see  "  Parties,") 
estate  of. 
(see  "  Vendor  and  Vendek,  "  "  Vendor.") 

VENDOR: 

right  to  specific  performance  by,  6. 

inabihty  of,  when  plaintiff,  to  give  a  good  title  or  to  convey  the  sub.iect 

matter  as  contracted,  339-353. 

general  rule,  339. 

in  cases  where  time  is  essential,  340. 

where  he  had  no  title  at  time  of  making  the  contract,  341. 

where  he  had  only  an  equitable  title.  342. 

where  the  land  was  encumbered,  342. 

where  his  estate  is  different  from  what  be  agreed  to  convey,  343-346, 

when  there  is  a  total  or  partial  fair  v-e  of  his  title,  347-350. 

failure  of  title  to  one  or  more  separate  lots,  351. 

deficiency  in  quantity  of  land,  352. 

when  objections  to  his  title  may  be  raised,  353. 

form  of  deed  by,  364. 

time  of  performing  by,  when  not  essential,  376,  377. 

delay  of,  in  perfecting  his  title,  421-433. 

within  what  time  he  may  make  a  good  title,  422,  423. 

waiver  of  his  default,  424. 

interest,  rents  and  profits  accruing  during  a  delay  by,  427-433. 

•when  entitled  to  a  partial  specific  performance  with  compensation,  449- 

456. 
(see  "  Compensation.") 
when  wife  of  has  an  inchoate  dower  and  refuses  to  join  in  the  conveyance, 

460-462. 
eflFect  of  his  conveying  away  tlve  hmd  subsequent  to  the  contract,  464-468. 
(see  "Vendee.") 

plaintiff  s  in  suit  for  a  specific  performance  by,  4S9,  490. 
defendants  in  suit  against,  491-494. 
(see  "  Parties.") 
special  statutory  proceedings  against  heirs  or  administrators  of.  u»  case  or 

his  death,  497,  498. 

VENDOR  AND  VENDEE: 

equitable  estates  of,  313-315. 
their  interest  at  law,  314. 
equitable  estate  and  rights  of  vendee,  314. 
598 


INDEX.  587 

\The  references^  are  to  the  aectiotnf  of  the  text.] 

VENDOR  AND  YE1^DE&— Continued. 

equitable  estate  and  rig'hts  of  vendor,  314. 

effect  of  these  interests  on  tlu-ir  i-ights  to  a  ixM-ibi-inance  of  tin-  <-ontx:ict,  316k 

rig^hts  of,  when  tlie  subject  matter  of  the  conti-act  fails,  31G-:522. 

VOLUNTARY  SETTLEMENT: 

when  renders  a  title  ddiihtfui,  206. 


w. 

WAIVER: 

of  the  requisite  of  mutuality,  171-174. 

(see  "  Ml'TUALITY.") 

of  fi-aud,  279, 

of  default  in  performing'  conditions  in  a  contract,  337. 

of  plamtifTs  afhrmative  acts  in  violation  of  the  contrjict,  359. 

of  forfeiture,  381. 

of  default  in  performing-  when  time  is  essential,  394-397. 

of  delay  in  performance,  418-420-424. 

WILL: 

contracts  to  make  a,  how  enforced,  191,  note, 
title  under,  when  doubtful,  208. 

599 


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